U.S. Supreme Court Justice Ruth Bader Ginsburg, the justice with the most pro-LGBTQ voting record in the history of the court, died Friday following a long struggle with cancer.
As hundreds of people gathered on the steps of the Supreme Court building in Washington, D.C., Friday night, two large rainbow flags were at the center of the crowd, a symbol of how important Ginsburg’s 27 years of work on the high court had supported the rights of LGBTQ people.
Stanford law professor Pamela Karlan, who successfully argued the landmark Title VII case before Ginsburg and the court last October, said “it was in no small part due to attorney and Justice Ruth Bader Ginsburg’s efforts to combat sex-based stereotypes–and as she wrote in the VMI case, to show that the law ‘must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females’–that LGBTQ people could win that case today.”
“While Justice [Anthony] Kennedy authored the most important LGBTQ rights decisions, Justice Ginsburg was the most important voice for LGBTQ people on the Court,” said Shannon Minter, legal director for the National Center for Lesbian Rights.
According to numerous news reports, Justice Ginsburg dictated a statement to her granddaughter, Clara Spera, just a few days before her death. The statement said: “My most fervent wish is that I will not be replaced until a new president is installed.”
But U.S. Senate Majority Leader Mitch McConnell, who denied President Obama a hearing on his nominee to replace Justice Antonin Scalia when Scalia died nine months before the 2016 presidential election, issued a statement Friday evening saying, “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
McConnell’s statement sounded the call to battle –less than two months before President Trump’s bid for re-election—over who will replace the court’s most progressive member.
But the battle cry went up on both sides of the aisle, suggesting McConnell would not be allowed to re-write the rules once again to suit his personal and political preferences.
U.S. Senator Lisa Murkowski, a Republican from Alaska, and U.S. Senator Susan Collins, a Republican from Maine, both made statements before the announcement of Ginsburg’s death, saying, they would not support a Senate vote on a Supreme Court nominee this close to the November 3 presidential election.
“If an opening comes in the last year of President Trump’s term and the primary process has started, we’ll wait until the next election,”
said U.S. Senator Lindsey Graham, in October 2018, during a public interview forum with The Atlantic magazine. Graham, who is the current chairman of the Senate Judiciary Committee, did not reiterate that commitment in his statement Friday night about Ginsburg’s passing.
The Ginsburg legacy
President Bill Clinton appointed Ginsburg to the U.S. Supreme Court in 1993, after establishing an already impressive record as a civil rights attorney of fighting for equal rights for women. After a 96 to 3 vote of the U.S. Senate, she became the second woman to become a member of the nation’s highest court, joining Justice Sandra Day O’Connor.
While Ginsburg had already established herself as a defender of equal rights for women, on the Supreme Court, she quickly proved herself to be a friend and ally of the LGBTQ community. Her voting record was the most consistently pro-LGBTQ record of any justice on the bench.
“As a Supreme Court justice, she authored key sex discrimination decisions that paved the way for the Court’s embrace of equality for same-sex couples in Obergefell and for LGBTQ workers in Bostock,” said Minter. “She was our champion and the architect of an expansive vision of gender equality that was broad and capacious enough to include LGBTQ people. Without her influence and legacy, none of those landmark decisions would have been possible.”
In the 15 LGBTQ-related decisions before the U.S. Supreme Court during her 27 years there, Ginsburg voted in favor of equal rights for LGBTQ people 13 times. Ironically, her first vote on an LGBTQ case was joining a unanimous decision in 1995, Hurley v. Irish American, to allow organizers of the Boston St. Patrick’s Day parade to prohibit an LGBTQ contingent from participating. The only other case in which she voted against the position taken by LGBTQ attorneys was in 2011 with Snyder v. Phelps. In that case, the court voted 8 to 1 that the Westboro Baptist Church had a First Amendment right to picket a soldier’s funeral with signs saying “Fag troops” and other anti-gay messages.”
But just one year later, she was part of a 6 to 3 majority led by Justice Kennedy, in Romer v. Evans, to rule that Colorado’s anti-gay Amendment 2 violated the U.S. Constitution’s guarantee of equal protection.
In 2000, she was part of the dissent to the 5 to 4 ruling in Boy Scouts v. Dale. While the majority ruled that the Boy Scout Association could deny membership to a gay person, Ginsburg joined both dissents that argued it should not be allowed to violate New Jersey’s state law against sexual orientation discrimination.
The first LGBTQ case in which Ginsburg authored a majority opinion came in 2010 with Christian Legal v. Martinez, asking whether a California college’s Christian student group could bar LGBTQ students from membership. For a 5 to 4 majority, she wrote that the Christian student group was trying to circumvent the college’s non-discrimination policy by claiming “a preferential exemption” from a legitimate policy.
“Justice Ginsburg gave that [Christian student group’s argument] the back of her hand with a phrase that immediately became our go-to silver bullet against these arguments,” recalled Jenny Pizer, senior counsel for Lambda Legal. “She simply observed that the Court had ‘declined to distinguish between status and conduct’ in the context of gay people, referencing the famous rule from Bray v. Alexandria Women’s Health Clinic, ‘A tax on wearing yarmulkes is a tax on Jews’.”
Ginsburg provided the pivotal fifth vote in several LGBTQ victories, including Hollingsworth v. Perry, which led to California’s allowing same-sex couples to marry in 2013, and U.S. v. Windsor, which struck down the federal Defense of Marriage Act that same year. She was also the fifth vote on Obergefell v. Hodges in 2015, which struck down state bans on marriage for same-sex couples.
And most recently, in June of this year, she was one of six justices to rule, in Bostock v. Clayton, that the language in Title VII of the federal Civil Rights Act that prohibits discrimination in employment “on the basis of sex” also covers discrimination based on sexual orientation and gender identity.
In discussing the Windsor decision in 2014, Ginsburg said she had never seen a social change as rapid as the one around marriage for same-sex couples. She added that she thought it was “just great that people who for years have been disguising what they were are now free to be what they are.”
During oral argument on this year’s Title VII case, Justice Ginsburg’s questions and comments were pointedly helpful to Karlan and the attorneys arguing in favor of Title VII covering discrimination based on sexual orientation and transgender status. She prompted Karlan to address the chief arguments of those who want to limit the reach of Title VII—including that Congress never intended, when it passed the Civil Rights Act in 1964, to cover sexual orientation.
“Justice Ginsburg’s was the first question out of the box at the oral argument in Bostock v. Clayton County earlier this year,” recalled Karlan Friday night. She noted Justice Ginsburg began, “Ms. Karlan, how do you answer the argument that back in 1964, this could not have been in Congress’s mind . . . .”
The question gave Karlan the opportunity to refute claims by some that Congress never intended Title VII to protect LGBTQ people.
Ginsburg also undercut the opposing side’s claim that firing a male employee for being gay would not be sex discrimination because the employer would fire a female employee for being gay. As Ginsburg pointed out, “There’s nothing in the record as far as I can see that there was a policy on the employer’s part of discharging lesbian women.” And she said, in the transgender case, that “the object of Title VII was to get at the entire spectrum of sex stereotypes.”
Ginsburg, joined by Justice Sonia Sotomayor, also wrote a blistering dissent to the court’s ruling in 2018 in Masterpiece Cake v. Colorado. Ginsburg said the gay couple that sought a cake from the Masterpiece Cakeshop “simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake [the baker] would have sold” to a male-female couple.
“What matters,” wrote Ginsburg, “is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.” The gay couple, she said, was “denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination.”