Wednesday, July 20, 2005
Sen. John Cornyn (R-Tex.) said that before Ruth Bader Ginsburg was appointed to the bench, she "expressed her belief that traditional marriage laws are unconstitutional but that prostitution is a constitutional right" ["Justice for the Next Justice," op-ed, July 2]. He also said that Justice Ginsburg "wrote that Boy Scouts and Girl Scouts are discriminatory institutions, and that courts must require the use of taxpayer funds to pay for abortions."
It's difficult to track down the possible origins of his allegation, but the senator may be giving a tendentious reading of a report that Justice Ginsburg co-authored in 1974 as part of the Columbia Law School Equal Rights Advocacy Project. The report, "The Legal Status of Women Under Federal Law," analyzed the U.S. Code and described the changes that would be needed to make federal law gender-neutral.
The report said that Boy Scouts and Girl Scouts "perpetuate stereotyped sex roles," but it took no position on whether doing so was unconstitutional. It pointed out that prostitution laws were enforced more often against female prostitutes than against their male clients, and it suggested decriminalization to the extent necessary "[t]o eradicate sex-based discrimination in the catalogue of crimes."
The report also pointed out that two constitutional cases that the Supreme Court had decided in 1965 and 1972 affirmed privacy rights that "arguably" would extend to "a consensual act between adults."
Conservatives -- I count myself among them -- don't believe that courts should outlaw abortion or criminalize consensual sex or that judges should invoke the Constitution to invent new rights. We believe instead that most such matters should be decided by legislatures. We can't then turn around and characterize a legal scholar's legislative recommendations as broad pronouncements about what's constitutional and what isn't.
The author was a law clerk for Ruth Bader Ginsburg from 1982 to 1983, when she was a judge on the U.S. Court of Appeals for the D.C. Circuit.