Comments on: Did Justice Ginsberg Set the Supreme Court Up to Allow Marriage Equality?

By: Ryan

Ryan — Thu, 22 Jul 2010 02:29:12 +0000

“See here for an example of his opposition to court cameras back in 2007 — long before this case or even Prop 8 was a twinkle in anyone’s eye.”

Then why not confine the argument to cameras? The argument against Olsen and Bosies could’ve been made without stating that homosexuals would likely cause irreparable harm. If we’re gonna parse what Ginsburg said, it seems reasonable to also parse this.

By: Carmine A. Pasquale

Carmine A. Pasquale — Wed, 21 Jul 2010 14:45:25 +0000

the week this decision was announced, justice ginsberg’s phrasing/word-choice [status] was, in fact, addressed on the npr diane rehm, friday news roundup as well as pbs news hour analysis and pbs, washington week in review! it is a BIG deal for such a little word ;)

By: Lymis

Lymis — Tue, 20 Jul 2010 18:40:18 +0000

The exact phrasing of the item can cut both ways, though.

They didn’t say that in all cases it is unacceptable to make a distinction between status and conduct with regards homosexuals. She specifically went out of her way to say that in the particular context of that case they didn’t make a distinction.

Sounds to me as though they are implicitly reserving the right to make exactly that distinction in other contexts. That isn’t quite the positive that other people seem to be seeing.

The case was about whether a Christian group was allowed to ignore the school’s stated nondiscrimination policy regarding club membership in school-recognized clubs. As far as I know, they didn’t address what the similar situation would be in a school without such a policy, or where the school explicitly excluded gays. In other words, this could be a precedent if there was a federally mandated right to gay marriage, but some state was refusing to honor it, but it seems pretty quiet on how it fits if the governing authority is the one doing the discriminating.

By: Timothy Kincaid

Timothy Kincaid — Tue, 20 Jul 2010 16:49:17 +0000

Interesting. We noted much the same thing in Point 4 of our analysis on the day the decision was released.

By: Pender

Pender — Tue, 20 Jul 2010 16:47:26 +0000

Ryan, Kennedy has a long history of vigorously opposing cameras in the Supreme Court. So where you and I see that decision as interesting because it deals with gays, I think Kennedy saw it as interesting because it deals with cameras in courts. See here for an example of his opposition to court cameras back in 2007 -- long before this case or even Prop 8 was a twinkle in anyone's eye.

By: Ryan

Ryan — Tue, 20 Jul 2010 16:03:42 +0000

Anthony Kennedy ruled with the majority in saying that there should be no cameras in the Prop 8 trial because homosexuals would likely cause “irreparable harm” to those testifying for the defense. That is not the words of a man who’s going to vote for marriage equality, period. I don’t understand why people keep ignoring that.

By: JFE

JFE — Tue, 20 Jul 2010 15:46:52 +0000

Olson and Boies picked up on this point almost immediately. I will also chalk it up to John Paul Stevens, who, as the most senior member in the majority of the Hastings case, had the power to decide who would write the majority opinion. In my own interpretation of history, his assigning Ginsburg the writing of the majority opinion is part of his legacy, and will also influence the ultimate decision in the prop 8 case, for which he will not be on the bench.