Recently, I saw a headline about Supreme Court Justice Ruth Bader Ginsberg calling the Roe v Wade decision flawed. Abortion opponents have been saying that for the past four decades, but for a progressive leaning justice, it seemed odd. Supreme Court decisions are critically important as they affect the cases before them, serve as a basis for case law, and they can not be overturned in any way except for another case to go before the Supreme Court at a later time. Look at Plessy v Ferguson and the amount of time before Brown v Board of Education. That Presidents appoint and the Senate approves nominations, is one of the most important reasons why we must always be concerned about who is elected to these positions in our government, for they determine in a big way the judicial perspective of the Supreme Court, and when it shifts towards conservative or liberal, a shift back towards center is very slow in coming.
Supreme Court Justice Ruth Bader Ginsberg’s comments raised some concerns in the progressive movement. Imagine thinking of Rose v Wade as flawed! This is important 1) because the Roe v Wade decision is a cornerstone progressive decision, and 2) because of the upcoming announcement by the Supreme Court in two cases affecting the LGBT community. The first case dealing with the Federal Defense of Marriage Act (DOMA). And the second being the Prop 8 case from California.
In regards to Marriage Equality, there are activists who are hoping for a far reaching, sweeping decision that would make same-sex marriage legal everywhere, but I’m happy to go on record saying that this would be in no one’s best interest. If it would happen, it would clearly lead to laws in states all across the country, where conservative State Legislatures would try and chip away at the ability to marry, little by little. In the name of Religious Liberty, we would see laws that allow Christians to refuse business to gays and lesbians. We would see a new segregation, that will at some later point, have to be addressed. We already know that separate is not equal. Do we really want to set up being confronted by that? What do I want to see from the US Supreme Court in regards to Marriage Equality? I’ll leave that for another post, but I am hoping we don’t see a sweeping decision to affects everyone.
Ginsberg points out that when the Court acts in such a way that there is movement towards one direction or the other which is too advanced for the general public’s attitude, it raises a situation where an ongoing backlash happens to chip away at those rights.
My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.
She also feels that the decision was less strong because it relied upon a right to privacy in a woman’s right to end a pregnancy rather than being focused on advancing women’s rights in general.
In our democracy, there is a sharing of power between three branches of the government and also between the states and the Federal Government. Issue advocates may seek a singular decision from the highest court in the land that “changes everything,” but this is inconsistent with the very foundation of how our democracy works. Progress on an issue must occur at the state level, as well as at the Federal level simultaneously, and within public sentiment and cultural change must accompany legislative and legal victories.
One of Ginsberg’s criticisms rings very true in regards to the upcoming Supreme Court decision. If the decision is seen as being too far in front of public sentiment, it shifts the focus and “hands the ball” to our opponents. It allows the opponents to frame the narrative. However, if we rely on a growing change in public sentiment and receive a court decision that sets the stage for further court actions with a sound foundation, the proponent advocates remain in control of framing the issue and can continue to make great progress.
The recent progress that has led to 12 states now allowing same-sex marriage has grown because the issue has been framed as one of fairness, and that love is about who we commit to be in relationship with. If we shift the framing of the issue to our proponents, the focus will become Religious Liberty, and slow our progress.
A good case to use as an example for our Marriage Equality struggle is that of Loving v Virginia more than Roe v Wade. At the time of Loving, a majority of states had already allowed inter-racial marriage, so that the court decision brought to the process to a close as opposed to Roe, where the decision began a whole new level of opposition.