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Ginsburg repeats what her 'recuse!'-ers fail to acknowledge: SCOTUS has *already* moved the marriage ball into a new court

by Jeremy Hooper

In an interview with The New York Times' Gail Collins, Supreme Court justice Ruth Bader Ginsburg says the following about marriage equality and its future at the court:

So Ginsburg is planning to be on the bench when the Supreme Court decides mammoth issues like the future of the Affordable Care Act and a national right for gay couples to marry. She says she doesn’t know how the health care case will turn out. But like practically every court observer in the country, she has a strong hunch about which way gay marriage will go: “I would be very surprised if the Supreme Court retreats from what it has said about same-sex unions.”
The Unsinkable R.B.G. [NYT]

The operative word there, in terms of the judge's recent comments favoring equality and the silly little groups that are trying to force her to recuse because Screen Shot 2015-02-13 At 8.49.25 Pmof them, is the word "retreats." Because the fact of the matter is that a majority of the court, including Ginsburg, has already decided in favor of many of the underlying issues.

In its opinion in the Windsor case, which was authored by Justice Kennedy and joined by a majority that included Justice Ginsburg, the court wrote pointedly about the effects of discrimination on adults, their children, their rights under the law, and their equal protection and access. While the language was tailored to federal DOMA specifically, there is little logical way to limit the language to just that one law and its enforced hardships. The opinion speaks about displaced protection, less respect, and the undermining of personhood and dignity that is inherent to exclusionary bans on marriage. The reason why most all court watchers, from just about any political stripe, admit that the court is near-guaranteed to support marriage equality in the coming case is because the language in Windsor is quite clear.

And let's not forget the subsequent two years, wherein a majority of the same Supreme Court has made decisions that have vastly expanded marriage rights to same-sex couples. As uber-conservative Justice Clarence Thomas wrote when the court allowed same-sex marriages to proceed in Alabama, SCOTUS has tipped its hand in a way that "may well be seen as a signal of the court's intended resolution." Whether or not that is overstatement, it is 100% true that the court has been speaking on this issue in various ways. And in speaking the way that it has, this Supreme Court has given us an American with thirty-seven marriage equality states. We could not have done that alone.

So back to Ginsburg and those who want to fault her for simply speaking favorable about the America in which we live: She is simply commenting on where we currently are. The justice has performed same-sex weddings, which are just as legal as any other. She has talked about the way gay rights has expanded, which is a plain-as-day reality not open for debate. And she has talked about the court-enacted progress that has led us to an America with thirty-seven marriage equality states and full federal recognition. Yes, there is still the crucial question of full fifty-state recognition before her, but at no time has the justice said that it is 100% guaranteed that SCOTUS will make that happen or that she will join the majority (I can even see ways the court could theoretically stop short of that). Justice Ginsburg has simply spoken to a progressive reality from which she does not see, or seem to personally want, a retreat. There is nothing in what she has said or done—not. one. word. or. deed.—that puts her at odds with the coming marriage case or her role in deciding it. Like all of us, she is very much allowed to live in the now.

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