We rarely see Supreme Court justices wade into the waters of political controversy outside the opinions issued from the hallowed halls of the nation’s highest court. The reason for staying away from controversy is that justices who delve into political issues in the public square but away from the bench may find themselves under fire for politicizing the office that is supposed to be free of politics.
Over the weekend, Justice Ruth Bader Ginsburg became the first member of the Supreme Court to officiate a same-sex wedding ceremony. The ceremony took place at the Kennedy Center for the Performing Arts between Michael Kaiser, President of the Kennedy Center, and John Roberts, an economist with the Commodity Futures Trading Commission.
Ginsburg admitted back in the spring that she had never been asked to officiate a same-sex wedding ceremony, most likely because members of the gay-rights movement did not want to jeopardize potential cases. However, since the historic rulings of June 26 on the Defense of Marriage Act (DOMA) and California’s Proposition 8, Ginsburg has already agreed to perform another one.
Ginsburg was in the majority on both of the recent Supreme Court decisions related to same-sex marriage. In those cases, the Court struck down section 3 of DOMA, requiring the federal government to recognize same-sex marriages for the purpose of federal benefits, and declared the private citizens of California did not have standing to argue their case before the Court, effectively upholding the decision of the California Supreme Court that ruled Proposition 8 unconstitutional.
Should we be surprised that Justice Ginsburg has jumped into the deep political waters of same-sex marriage? Not really.
Ginsburg is the senior liberal justice on the Court, and it came as no surprise that she supported same-sex marriage in the recent decisions. In fact, The Washington Post reported:
Ginsburg said she thought she and her colleagues had not been asked previously to conduct a same-sex ceremony for fear it might compromise their ability to hear the issue when it came before the court. But once the cases had been decided, Ginsburg seemed eager for the opportunity.
Her agreement to perform a second ceremony in September was communicated to the individuals in a letter dated June 26, the date of the Court’s decisions.
Should we be disappointed that Justice Ginsburg has agreed to perform these ceremonies? Certainly.
Ginsburg’s decision to officiate these ceremonies raises questions regarding future cases related to same-sex marriage. One would be naïve to think that no other cases will reach the high court in the coming years. Even though Ginsburg turned 80 this year, she has clearly communicated that she has no plans to retire anytime soon.
When asked about performing the ceremony, Ginsburg stated:
I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship.
In this statement, Ginsburg has offered her personal definition of marriage that most certainly impacts her legal opinions on same-sex marriage. The only two qualifications for marriage, according to Ginsburg, are that people should “love each other” and “want to live together.” Notice that she places no limits on the number, gender, or consanguinity of the people—they simply need love and a desire to live together. As other cases make their way to the Supreme Court, specifically the “Sister Wives” lawsuit still pending in federal court in Utah, this definition of marriage is likely to play a key role in Ginsburg’s decisions.
Ginsburg’s definition is essentially what Girgis, Anderson, and George have called the revisionist definition of marriage in their book, What Is Marriage? Man and Woman: A Defense. Ultimately, these authors find that the revisionist definition is incoherent because the state only has an interest in regulating certain relationships that are sexual and monogamous. The revisionist definition requires neither.
At the end of the day, this is another example of the culture’s march toward a redefinition of marriage. This time it came from the actions and words of a justice outside the walls of the Supreme Court. May we continue to be diligent to make the case for God’s design for marriage—one man and one woman for a lifetime.
Evan Lenow serves as assistant professor of ethics, the Bobby L. and Janis Eklund Chair of Stewardship, director of the Center for Biblical Stewardship, associate director of the Richard Land Center for Cultural Engagement, and chair of the Ethics Department at Southwestern Seminary. He writes regularly at evanlenow.com. Follow him on Twitter @EvanLenow.