WASHINGTON — Supreme Court Justice Ruth Bader Ginsburg officiated a same-sex “wedding” last weekend as the nation’s high court deliberates a monumental case that will decide states’ rights regarding the definition of marriage.
Ginsburg wore her traditional black robe and lace collar as she presided over the ceremony of Michael Kahn and Charles Mitchem. According to reports, Ginsburg put an emphasis on the word “Constitution” as she declared that she was uniting them under the “powers vested in her by the Constitution of the United States.”
“No one was sure if she was highlighting her own beliefs or giving a hint to the outcome of the case under consideration by the Supreme Court that could determine whether same-sex marriage is constitutional,” wrote New York Times columnist Maureen Dowd.
As previously reported, Ginsburg, nominated to the bench by Bill Clinton, officiated a ceremony in 2013, where she presided over an event for Kennedy Center President Michael Kaiser and his partner John Roberts.
“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,” she said prior to the occasion, according to the Washington Post.
But as a result of her involvement and outspokenness on the matter, some called for Ginsburg to recuse herself from the Obergefell v. Hodges decision, which she has not done.
The Foundation for Moral Law in Montgomery, Alabama, led by the wife of “Ten Commandments judge” Roy Moore, filed a motion last month asking for both Ginsburg and Elena Kagan—who likewise has officiated a ceremony—to excuse themselves from the case. It noted that 28 U.S.C. sec 455(a) requires that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
“Common sense dictates that one who has performed same-sex marriages cannot objectively rule on their legality,” President Kayla Moore stated. “If these justices participate in this case, the court’s decision will forever be questioned as being based on their personal feelings rather than on the Constitution itself.”
During oral argument last month, Ginsburg suggested that the definition of marriage has evolved over time.
“We have changed our idea about marriage,” she said. “Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female.”
“[Y]ou wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible,” Ginsburg stated. “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 a marriage between a man and a woman, but the man decided where the people would be domiciled; it was her obligation to follow him.”
But other judges expressed a hesitancy to change the definition for one particular type of relationship.
“This definition has been with us for millennia,” said Justice Anthony Kennedy. “And it’s very difficult for the court to say, ‘Oh, well, we know better.’”