December 14, 2020 HUMAN RIGHTS

On the Basis of Sexual Orientation and Gender Identity: Ruth Bader Ginsburg's LGBTQ Legacy

by Bobbi M. Bittker

Who could predict that a slight Jewish Brooklynite would metamorphose into an American legal giant, clearing the way for landmark LGBTQ rulings?

There is no indication that Ruth Bader Ginsburg intended to blaze a trail for the LGBTQ community. In her career, she distinguished herself from other lawyers with her original legal arguments and strategies, on behalf of both men and women, opposing discrimination on the basis of sex. Women lawyers preceding her unsuccessfully tried to secure equal rights for women by means of the Fourteenth Amendment.

Who could predict that a slight Jewish Brooklynite would metamorphose into an American legal giant, clearing the way for landmark LGBTQ rulings?

Who could predict that a slight Jewish Brooklynite would metamorphose into an American legal giant, clearing the way for landmark LGBTQ rulings?

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Ginsburg credited her friend Pauli Murray, the Black lesbian scholar, lawyer, and activist, as the inspiration for the first successful argument applying the Fourteenth Amendment to win equal rights for women. Ginsburg was victorious in Reed v. Reed (1971), and the Court ruled that administrators for an estate cannot be named so that it discriminates against the sexes, paving the way to expand the Equal Protection Clause to include the LGBTQ community. This was the first time the Equal Protection Clause of the Fourteenth Amendment was applied to strike down discrimination against women, broadening its application beyond its original intent: to protect former Black slaves and their descendants, guaranteeing them equal protection under the law.

In Romer v. Evans (1996), the Court struck down Colorado’s anti-gay Amendment 2, which barred government efforts to protect gays from discrimination. Prohibiting protections to those who suffer discrimination due to their sexual orientation violates the Fourteenth Amendment’s Equal Protection Clause. In this first LGBTQ rights opinion joined by Justice Ginsburg, Justice Kennedy said, “If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

The Supreme Court struck down state laws criminalizing sodomy in Lawrence v. Texas (2003). While the Court did not find that the Texas law violated the Fourteenth Amendment guarantee of equal protection, they did hold that the convictions violated interests in liberty and privacy protected by the Due Process Clause. Justice O’Connor, however, argued that it was a violation of the Equal Protection Clause in her concurring opinion.

The year 2013 was a one-two punch against the movement to ban same-sex marriage. In Hollingsworth v. Perry, the Supreme Court restored same-sex marriage rights in California, not substantively, but procedurally. The Court ruled that petitioners neither had standing to bring the case to the Supreme Court nor to the Court of Appeals. Therefore, the decision of the district court stood.

Proposition 22 was passed in California 13 years prior, affirming that marriage is between a man and a woman. Eight years later, the California Supreme Court held that the state constitution required the term “marriage” to include same-sex couples, invalidating Proposition 22. In response, the voters passed Proposition 8, amending the state constitution to reflect that only opposite-sex marriages will be recognized by the state. The respondents, a gay couple and a lesbian couple, sued, claiming Proposition 8 violated their Fourteenth Amendment right to equal protection. The district court decided that Proposition 8 violates equal protection under the law.

Then, the Defense of Marriage Act (DOMA) was challenged in Windsor v. United States (2013). The Court held that Section 3 of DOMA was unconstitutional because it violated the Equal Protection Clause of the Fifth Amendment. DOMA defined “marriage” under federal law as the “legal union between one man and one woman.” Justice Ginsburg joined Justice Kennedy’s majority opinion stating that DOMA denies same-sex couples the rights granted with federal recognition of marriage available to other couples with legal marriages under state law.

Justice Ginsburg also joined the majority in Obergefell v. Hodges (2015), striking down state bans on marriage for LGBTQ couples and extending full marriage equality. The majority opinion declared that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

In Obergefell oral arguments, Justice Ginsburg said that if same-sex marriage becomes the law of the land, “all of the incentives, all of the benefits that marriage affords would still be available. So you’re not taking away anything from heterosexual couples. They would have the very same incentive to marry, all the benefits that come with marriage that they do now.” She was also the first Supreme Court justice to officiate at the wedding of an LGBTQ couple, knowing long before most that equal rights are not a zero-sum game.

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Bobbi M. Bittker

Civil Rights Attorney and Town Councilperson, Bedford, New York

Bobbi M. Bittker is an attorney focusing on civil rights advocacy and town councilperson in Bedford, New York. She is co-chair of the ABA Section of Civil Rights and Social Justice's Sexual Orientation and Gender Identity Committee, sits on the New York State Bar Association  Committee on Civil Rights, and is a founding member of the Human Rights Campaign’s Project THRIVE.