A Ruth-Less Supreme Court Would be Bad for LGBT Rights

News that U.S. Supreme Court Justice Ruth Bader Ginsburg has had to have emergency surgery for pancreatic cancer has set off a whirlwind of debate over Ginsburg's future on the Court. While much is unknown about whether she'll be able to continue on the Court (she did, after all, survive an earlier bout of colon cancer without missing one day of work), one thing is clear: her departure will mean that the Court is losing one of its more prophetic voices on equal rights.

Despite the fact that some LGBT rights groups were sketpical of Ginsburg when President Bill Clinton nominated her in 1993, Ginsburg has become a lynchpin on the Court for advancing equality. There have been three seminal rulings on LGBT rights from the U.S. Supreme Court during her tenure, and in all three, Ginsburg supported decisions that fostered LGBT rights.

In 1996, Ginsburg had her first chance to weigh in on LGBT rights with the case Romer v. Evans. This case questioned the Constitutionality of a Colorado law (known as Amendment 2) that explicitly prohibited all municipalities in Colorado from passing legislation that would add sexual orientation to anti-discrimination policies, or otherwise consider LGBT people a protected class. It was a monster of a state law that sought to cast LGBT people as pariahs, unworthy of protections (or equal rights) under state law. Ginsburg sided with the 6-3 majority in overturning the law, saying that there was no rational basis for the law and that it violated the equal protection rights of LGBT people. Per the Court's ruling, "[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board...it lacks a rational relationship to legitimate state interests."

In 2000, the Supreme Court heard another case dealing with LGBT rights, this time over the Boy Scouts of America and their practice of discriminating against gay men. The case, known as Boy Scouts of America v. Dale, examined whether the the state of New Jersey could force the Boy Scouts of America to accept gay members under its statewide anti-discrimination law. Sadly, the Supreme Court ruled 5-4 that the Boy Scouts did have the right to discriminate and could bar gay people from joining their ranks. But, Ginsburg joined the dissent in this case and sided with New Jersey's anti-discrimination law. According to the dissenting judges, "every state law prohibiting discrimination is designed to replace prejudice with principle." That's what they saw happening in New Jersey.

While these two cases are historic, perhaps no case has been more important in the realm of LGBT rights than the 2003 decision in Lawrence v. Texas. This case struck down all U.S. state laws that banned sexual conduct between same-sex consenting adults (or, in other words, sodomy laws). Ginsburg was a proud member of the majority in this decision, which said in ruling for the plaintiffs that "the state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause (of the US Constitution, which states unequivocally that ‘no person shall be deprived of liberty without due process of law’) gives them full right to engage in their conduct without intervention of the government."

Given her opinions in these three cases, we'd love to see Ginsburg still on the bench for any future cases involving LGBT rights. She's established her street cred as someone who values equal rights. Her departure from the Court, if it comes to that, would certainly be sad news for advocates of LGBT rights.