September 21, 2020 at 7:15 am PDT | by Chris Johnson
‘Skim milk’ marriages not enough: Ginsburg remembered as LGBTQ ally
Ruth Bader Ginsburg

Ruth Bader Ginsburg said same-sex marriages under DOMA were like “skim milk.” (Washington Blade photo by Michael Key)

WASHINGTON — As the nation mourns the passing of former U.S. Associate Justice Ruth Bader Ginsburg, attorneys who argued major LGBTQ cases before the U.S. Supreme Court remember her for interceding on behalf equality under the law for LGBTQ people.

From making a classic quip that same-sex marriages under the anti-gay Defense of Marriage Act were “skim milk” marriages to aiding lawyers under fire from conservative jurists, lawyers in these cases say she made her presence known in efforts to advance LGBTQ rights.

Mary Bonauto, a civil rights attorney at GLBTQ Advocates & Defenders who in 2015 argued for same-sex marriage before the Supreme Court in Obergefell v. Hodges, said a key moment for her was when Ginsburg interrupted questioning from skeptical judges.

Amid questions to Bonauto about the historical and cross-cultural practice of legal marriage between different sex couples, suggested there were rational and practical reasons for limiting marriage to a union of a man and a woman, Ginsburg pointed out the institution of marriage has evolved since that time.

“But you wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago,” Ginsburg said. “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.”

Bonauto said that moment allowed her to affirm Ginsburg’s point about the evolving nature of marriage as an institution and elaborate.

“[F]or centuries we had ­­and Europe had this coverture system where a woman’s legal identity was absorbed into that of her husband and men and women had different prescribed legal roles,” Bonauto said at the time. “And again, because of equality and changing social circumstances, all of those gender differences in the rights and responsibilities of the married pair have been eliminated. And that, of course, is a system in which committed, same­-sex couples fit quite well.”

Although former U.S. Associate Justice Kennedy ended up writing the decision for same-sex marriage nationwide, Bonauto said that line of reasoning is present in his decision — so Ginsburg’s impact was apparent.

“[Marriage] has not stood in isolation from developments in law and society,” the decision says. “The history of marriage is one of both continuity and change. That institution even as confined to opposite-sex relations has evolved over time.”

Paul Smith, a Georgetown law professor who successfully argued Lawrence v. Texas before the Supreme Court in 2003, said Ginsburg gave him needed relief during oral arguments 17 years ago when the late U.S. Associate Justice Antonin Scalia was giving him the third-degree with aggressive questioning.

“The question was ‘I just wanted to be clear, you’re asking us to overrule Bowers v. Hardwick, the prior case, and she knew the answer to the question,'” Smith said. “It was just a way to let me break in, and let me say, ‘Yes. Let me give me you the three reasons why we think it should be overruled, and it was a very nice generous thing to do.”

After the court accepting Smith’s arguments and ruled against state laws criminalizing same-sex relations, he said he had a later engagement with Ginsburg months later at the first convention of the American Constitutional Society.

“She came over and I didn’t really know her that well, and she had a big smile on her face and said, ‘I bet your having a very nice summer,'” Smith said.

A mistress of the one liners, Ginsburg brought clarity to oral arguments with colorful language. John Bursch, now an attorney for the anti-LGBTQ legal firm Alliance Defending Freedom, was making the case different sex couples being able to conceive/bear children as the essence of marriage in 2015, Ginsburg got a chuckle in the courtroom when said asked, “Suppose a couple, 70-year-old couple, comes in and they want to get married?”

Ginsburg also lit up oral arguments on DOMA in 2013 when she said same-sex marriages under the law, which barred the federal government from recognizing same-sex unions, amounted to “skim-milk” marriages.

Roberta Kaplan, a New York-based who argued against DOMA on behalf of lesbian widow Edith Windsor, said on Twitter those three words “revolutionalized how people think about gay people and our relationships.”

“The minute it came out of her mouth, I knew in my gut we would win the Windsor case,” Kaplan said. “RBG’s analogy to a ‘skim milk’ marriage was better by a mile than anything we or any of the other lawyers had used to describe Edie’s marriage under DOMA in the dozens of briefs in the case.”

Kaplan added Ginsburg subsequently told her people had told her afterwords “they thought it was the single best thing that she ever had said or would say from the bench,” although she didn’t say whether she agreed with that assessment.

Although Ginsburg didn’t author major LGBTQ decisions from the court, she did join Kennedy for every opinion. Among them was Romer v. Evans in 1996, which struck down Colorado’s anti-gay Amendment 2, Lawrence v. Texas in 2003, which struck down state laws criminalizing sodomy. Both decisions were early indications the nation was beginning to head into a different direction to accept.

Ginsburg also joined rulings that advanced same-sex marriage, including Windsor v. United States in 2013, which struck down the anti-gay Defense of Marriage Act; Hollingsworth v. Perry in 2013, which restored marriage equality to California after Proposition 8; and Obergefell v. Hodges, which struck down state bans on same-sex marriage and extended full marriage equality throughout the country.

For each of these rulings on marriage, justices were split 5-4, so Ginsburg weren’t on the court, the decisions may not have come out in favor of the LGBTQ community.

One opinion Ginsburg did author was the 2010 decision in Christian Legal Society v. Martinez, which requires student groups at colleges, including religious groups with objections to LGBTQ people, to accept all students to obtain official recognition.

“A college’s commission — and its concomitant license to choose among pedagogical approaches — is not confined to the classroom, for extracurricular programs are, today, essential parts of the educational process,” Ginsburg wrote.

More recently, Ginsburg joined the decision in Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination, thus illegal under Title VII of the Civil Rights Act. The broad ruling grants protections to LGBTQ people wherever there are laws against sex discrimination, including employment, housing, health care and education.

Smith said Kennedy was given wide latitude in writing the gay rights decisions from the Supreme Courts because the liberal justices needed him as the fifth vote in those decisions, but nonetheless Ginsburg found to be live up to her reputation as a supporter of LGBTQ equality under the law.

“Those gay opinions, they were all hand-written on a yellow pad by Justice Kennedy and the other justices didn’t interfere; they just let him have his way because they knew he was the key fifth vote,” Smith said. “And they didn’t write any concurrences, they didn’t try to edit it, so it’s very much Kennedy’s voice, but she was a huge supporter of LGBT equality and pleased as punch to have seen it come about while she was on the court.”

Bonauto said the key to understanding Ginsburg’s worldview is a non-LGBTQ decision she wrote in 1996, United States v. Virginia, which struck down the long-standing male-only admission policy of the Virginia Military Institute. At the end of the opinion, Ginsburg talks about how the history of the Constitution as a history of including people formerly excluded.

“[That] can be tracked from Romer in the same year and through to Lawrence, Windsor and Obergefell,” Bonauto concluded. “After all, in Obergefell, the Court decided that same-sex couples also enjoy a fundamental right to marry even if in the past it had been limited to different-sex couples. And it discussed four factors — mostly grounded in constitutional law or the reality of what marriage has become as an evolving institution — about why marriage is fundamental.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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