U.S. Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia discussed their views on gay rights before an audience of more than 1,400 people at George Washington University’s Lisner Auditorium Thursday night.
During a 90-minute forum moderated by Nina Totenberg, legal correspondent for National Public Radio, the two justices, among other things, said they are good personal friends and socialize together with their respective families despite the fact they disagree on nearly all of the legal issues that come before the high court.
The event was sponsored and organized by the Smithsonian Associates, an educational and membership arm of the Smithsonian Institution’s museums program.
Scalia’s reputation as the Supreme Court’s most conservative member and Ginsburg’s record as one of its most liberal justices surfaced at the event when Totenberg asked them to weigh in on why the court “has become more and more open to protecting the rights of gay people under the Constitution.”
Ginsburg voted with the court’s majority in its 2013 landmark decision overturning the anti-gay Defense of Marriage Act and separate ruling that proponents of California’s Proposition 8, which banned gay marriage in that state, lacked standing to defend the ban. Scalia dissented in the DOMA case, saying the court overstepped its bounds by handing down a ruling that he said was not supported by the Constitution.
But in a rare development, he sided with Ginsburg in the Prop 8 ruling, which sent the case back to the 9th Circuit U.S. Court of Appeals. That court, which overturned Prop 8 in an earlier ruling, removed its stay on the earlier ruling shortly after the Supreme Court’s action, clearing the way for same-sex marriages to resume in California.
“My own view of it is that people who once hid what they were have announced to the world this is who I am,” Ginsburg said in reflecting on what she called a societal change that led to the court’s pro-gay rulings.
“And we looked to see who they are,” she said of gay people. “They turned out to be our next door neighbor of whom we’re very fond. They turned out to be our child’s best friend – perhaps even our child,” she said. “I think that accounts for the very swift change.”
Scalia didn’t dispute Ginsburg’s assertion that society was changing but questioned the appropriateness of the Supreme Court to rule on marriage equality and other equality-related issues.
“The issue of gay rights, on abortion, on many of the issues in which Ruth’s opinions and mine differ does not pertain to the substance,” he said. “It doesn’t pertain to whether gay people ought to have those rights or whether there ought to be a constitutional right or a right to an abortion,” he said.
“That isn’t the issue. The issue is who decides,” Scalia told the gathering. “That’s all. I don’t have any public views on any of those things. The point is who decides? Should these decisions be made by the Supreme Court without any text in the Constitution or any history in the Constitution to support imposing on the whole country or is it a matter left to the people?” he asked.
“But don’t paint me as anti-gay or anti-abortion or anything else,” he added. “All I’m doing on the Supreme Court is opining about who should decide.”
Ginsburg then added, “It isn’t the Supreme Court that is deciding for the whole society like an imperial ruler. There hasn’t been any major change in which there wasn’t a groundswell among the people before the Supreme Court put its stamp of approval on the inclusion in the equality concept of people who were once left out,” she said.
Among those attending the event were marriage equality activists Kris Perry and Sandy Stier, the lesbian couple who became plaintiffs in the landmark case known as Hollingsworth v. Perry, in which the Supreme Court ruled that proponents lacked standing to defend the measure, leading to it being overturned.
“I thought the distinction Scalia made about his interest in ruling on who gets to decide versus the substance of any matter was an interesting point,” Perry said after the forum.
“I thought Ruth Bader Ginsburg particularly did a great job talking about how the Constitution needs to reflect the times and the people and that ‘we the people’ is a group of people that is actually evolving,” Stier said.
“We felt in the course of our experience going to the Supreme Court and getting the rights of marriage in California that we became recognized when we had that right,” said Stier. “And so I could really relate to what she said – that there was a time when the people didn’t include people of color, it didn’t include women and it didn’t include gay people.”