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Is the Supreme Court a better friend to gay rights than to women's rights?
Justice Ruth Bader Ginsburg says there's a double standard at the court. But a look at the historical record proves otherwise.
 
Ginsburg's concerns may not be wholly founded.
Ginsburg's concerns may not be wholly founded. (AP Photo/Charles Dharapak)

Supreme Court Justice Ruth Bader Ginsburg is pissed. And The New York Times is more than happy to serve as her megaphone.

That's what I took from the paper's recent front page story in which Supreme Court correspondent Adam Liptak channels Ginsburg and a handful of legal scholars to suggest that the court is boldly advancing gay rights while simultaneously stomping on the rights of women.

It's an incendiary charge. And ahistorical nonsense.

Liptak's case is built largely on an analysis of Justice Anthony Kennedy's soul.

The eight justices apart from Kennedy are evenly divided between conservatives (all men) and liberals (one man and three women). Kennedy is the swing vote in cases involving social issues — and on gay rights he swings left, while on women's rights he swings right.

What accounts for the difference? Kennedy's jurisprudence oscillates between libertarianism and paternalism. The former dominates in his gay-rights opinions because "he has long had gay friends." The latter prevails when it comes to women because he "is the product of a placid middle-class existence in which most women stayed within traditional roles."

I'll come back shortly to this condescending and crudely psycho-biographical view of Kennedy's jurisprudence.

But before getting to that, it's important to recognize that this tendentious theory serves as an explanation of an imaginary problem. The fact is that the different outcomes in cases touching on gay rights and women's rights can be explained by the very different state of the law in those two areas.

The Equal Pay Act passed 51 years ago. Bans on contraception were ruled unconstitutional in Griswold v. Connecticut, 49 years ago. Roe v. Wade, which established full reproductive rights for women, was decided 41 years ago. The Pregnancy Discrimination Act passed 36 years ago. And so forth.

None of this means that women don't still face significant obstacles to the realization of full social, economic, and legal equality. They certainly do. But women's rights have been legally established for decades, with courts left to determine precisely how they should be applied in particular cases, and (inevitably) setting limits on them when they come into direct conflict with contrary rights claims, including the right to the free exercise of religion.

The state of the law on issues affecting gays is very different. There is no federal law banning workplace discrimination against homosexuals, for example, and, astonishingly, it remains legal in 29 states to fire an employee for being gay. Discrimination in housing on the basis of sexual orientation is also permitted in 29 states.

Gay marriage, meanwhile, has made remarkable strides in the past decade. But it is legal in only 19 states, with the constitutionality of numerous explicit bans currently under review in the courts. The Supreme Court may one day soon — thanks in part to Justice Kennedy — declare a constitutional right to gay marriage, an event that would be a cultural earthquake to rival Roe. But it hasn't happened yet.

If only Liptak's article showed some sign that he's aware of these differences.

Oh, wait, it does.

The recent cases concerning women are not directly comparable to those involving gay rights, which considered questions as fundamental as whether states can make gay sex a crime. And gay rights groups say there is much work to be done before gay men and lesbians achieve the legal protections women have long had.

In much of the country, for instance, employers and landlords are free to discriminate based on sexual orientation. The Supreme Court has never recognized heightened constitutional scrutiny for discrimination based on sexual orientation, though it has long done so for ones based on gender. [The New York Times]

That's very nicely put.

But then why write an article alleging that the court is straightforwardly using a sexist double standard in legally comparable cases?

Especially when the incomparability doesn't stop there.

Consider the difference between, say, Kennedy's vote to overturn Texas's sodomy ban in Lawrence v. Texas (2004) with his vote in favor of Hobby Lobby in the case from the just-completed term that has infuriated Ginsburg and many feminists.

Lawrence concerned a law that made gay sex a crime enforceable by the police and punishable by the government. In its extreme sexual intrusiveness, it was roughly (though imperfectly) analogous to the anti-contraception laws that the court declared unconstitutional in 1965. It was that 1965 decision (Griswold), incidentally, that established the constitutional right to privacy that made both Roe and Lawrence possible.

Hobby Lobby did nothing whatsoever to limit Griswold. No form of contraception was declared illegal. Religiously conservative business owners were given no power to decide what form of birth control their female employees could choose to purchase or use — and it is inconceivable that they would have been given any such power.

All Hobby Lobby did was modestly curtail a regulation within the Affordable Care Act that seeks to make contraception freely available to female employees through insurance provided by their employers.

Did the decision place a limit on this new right? Yes, marginally. Unless an acceptable accommodation can be devised, women working for corporations closely held by religious conservatives may have to pay out of pocket for four out of 20 available forms of contraception. Of course, prior to the passage of the ACA, employers were free not to provide coverage for any or all forms of contraception. But now, four short years after passage of the ACA, many women apparently view the benefit of receiving free birth control as a right that should never be infringed.

Maybe that's how it should be seen (though I'm not convinced).

But regardless, it should be obvious that a right to receive a widely available health-related product at no expense is hardly comparable in legal or moral gravity to a right to engage in sexual activity without fear of arrest and imprisonment. And that means it's perfectly possible to understand without speculating about sexist motives how a Supreme Court justice might decide to vote with the majority in both Lawrence and Hobby Lobby.

Which brings us back to Kennedy.

I share Ginsburg's dismay with some of his reasoning in the 2007 case upholding the Partial-Birth Abortion Ban Act. It is indeed risible (and pretty darn paternalistic) to justify banning a medical procedure based in part on idle speculation about how an imagined woman might come to regret an imagined abortion.

Yet feminists, including Ginsburg, would do well to forgive the man who co-wrote the majority opinion in Planned Parenthood v. Casey, the 1992 decision that upheld most of Roe — and did so in language that has become the cornerstone of the court's liberal jurisprudence on social issues ever since: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

When it's counted — on fundamental questions of liberty and rights — Kennedy has come through for women no less than he has for homosexuals.

 
Damon Linker is a senior correspondent at TheWeek.com. He is also a consulting editor at the University of Pennsylvania Press, a former contributing editor at The New Republic, and the author of The Theocons and The Religious Test.

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