Supreme Court Justice Ruth Bader Ginsburg consistently keeps earning her "Notorious RBG" nickname. During this week's oral arguments about same-sex marriage, the 82-year-old feminist icon perfectly summarized the argument for marriage equality.
The justices were questioning Mary Bonauto, an attorney arguing that gay-marriage bans violate the Constitution by not providing equal protection under the law. Justice Samuel Alito brought up the point that "up until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex" and that past cultures likely had a good reason for that.
That's where Ginsburg came in, and perfectly tied the issue of same-sex marriage to the feminist movement, arguing that the institution of marriage has indeed changed lately—and for the better:
But you wouldn't be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn't possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him. There was a change in the institution of marriage to make it egalitarian when it wasn't egalitarian. And same-sex unions wouldn't – wouldn't fit into what marriage was once.
Later on, when questioning the lawyers on the other side of the case, she hammered the point home:
We have changed our idea about marriage is the point that I made earlier. Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this Court's decision in 1982 when Louisiana's Head and Master Rule was struck down. And no State was allowed to have such such a marriage anymore. Would that be a choice that a State should be allowed to have? To cling to marriage the way it once was?
But she wasn't alone in seriously challenging the concept that the institution of marriage would be threatened. Justice Sonia Sotomayor got heated when a lawyer argued that the institution of marriage is meant to tie children to their biological parents.
Marriage doesn't do that on any level. How many married couples do fathers with the benefits or the requirements of marriage walk away from their children? So it's not that the institution alone does it and that without it that father is going to stay in the marriage. He made a choice. It should be gender neutral. Some mothers do the same thing. But my point is that I'm not sure how I get to the point that Justice Breyer is making: How does withholding marriage from one group, same-sex couples, increase the value to the other group?
With arguments like this, it's clear why experts speculate that the court will rule in favor of gay marriage this June.
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