We lost a friend Friday night. And, as a movement, we in the secular, pro-science, reality-based community don’t have a lot of friends in positions of power. Certainly not friends like Justice Ginsburg.
For issues at the core of our mission here at the Center for Inquiry, Justice Ruth Bader Ginsburg was more than a reliable vote, she was an active supporter. She stood four-square for the First Amendment, for the defense of speech and real religious freedom, and for the clear and inviolable separation of church and state. When the majority of the Supreme Court lurched to the right, permitting religious exemptions that would harm innocent parties, the Notorious RBG held firm in her belief that justice demands that a person’s faith cannot be a justification for hurting others.
For much of her career, this placed her in the minority. Even when joining Court majority opinions on church-state matters, her firm stance in unwavering support of strict separation often prevented her being given the chance to write the majority opinion. Her voice on the Establishment Clause was heard mainly in dissent, both in opinions and in incisive, testing questions in oral arguments.
As the current Court repeatedly made rulings extending religious privilege and government support for religion, Ginsburg, joined by Sonia Sotomayor, were the only objectors. In Trinity Lutheran Church v. Comer, where the state of Missouri was compelled to provide money to a church to resurface its children’s play area despite the state constitution forbidding such support; in American Humanist Association v. American Legion, where the Supreme Court ruled that a 40-foot concrete cross on public land, maintained at public cost, was not sufficiently religious to be an endorsement of Christianity; and in Our Lady of Guadalupe v. Morrissey-Berru, where a parochial school claimed the right to terminate a teacher after a breast cancer diagnosis without regard for the Americans with Disabilities Act, it was this duo that provided the sole dissents.
In Espinoza v. Montana, the dissent was broader, encompassing both Justices Breyer and Kagan, but it was led by Justice Ginsburg. Montana, like 38 other states, has a state constitutional provision that prevents taxpayer money being used to fund sectarian education. When that state launched a voucher program, the Montana Supreme Court ruled that it would be unconstitutional to allow those vouchers to be used at religious schools, but to exclude religious schools would violate federal precedent. The state Supreme Court therefore invalidated the entire program. The conservative majority on the United States Supreme Court, however, led by Chief Justice Roberts, decided it was time to pull the plug on what it saw as the outdated notion “that to compel a man to subsidize with his taxes the propagation of ideas which he disbelieves and abhors is sinful and tyrannical.”
The majority, then, compelled the re-introduction of the program, and the inclusion of religious schools as legal recipients of government-funded vouchers. To Ginsburg, the result of the case should have been simple. As a result of the Montana Supreme Court’s actions, she observed that “secular and sectarian schools alike are ineligible for benefits, so the decisions cannot be said to entail differential treatment based on … religion.”As Ginsburg saw, the Montana state decision was neutral. It neither harmed nor favored religion. As such, it passed muster under the federal constitution.
She had previously dissented in Zelman v. Simmons-Harris, the case where the Supreme Court had ruled that tax dollars could flow through vouchers to religious schools. To her, the dividing line was clear — paying for religious education out of the public purse was a violation of the Establishment Clause.
Ginsburg’s support for CFI’s values went far beyond an agreement on a strict interpretation of the Establishment Clause. Her view of justice is one which we share—a fair application of the law to all, without the government favoring any gender, sexual orientation, race, or religion. In Burwell v. Hobby Lobby Stores, she vociferously dissented from the majority’s granting of a special exemption to religious business owners. That exemption would deny access to zero copay contraception under the Affordable Care Act for women across the country, not based on their own beliefs, but instead those of their employers.
She stood strong for the rights of the LGBTQ community to basic civil rights such as marriage. As the battleground in the Supreme Court moved towards the application of civil rights protections over the religiously based objections of businesses, as ever, Justice Ginsburg defended the target of discrimination. In Masterpiece Cakeshop v. Colorado, Ginsburg again stood with Sotomayor in lonely dissent, defending the finding that a baker had discriminated against a gay couple based on their sexual orientation by refusing to make them a wedding cake.
RBG, the second woman to be raised to the Supreme Court, represented the voice of feminism on that body throughout her storied career. She will be remembered as the stalwart defender of a woman’s right to choose, rejecting both the philosophical attacks on abortion as well as the pseudoscientific claims of the abortion opponents who sought to twist medical facts. At times, it seemed like it was her strength of will alone that was keeping Roe v. Wade alive, dragging others such as Justice Kennedy in Whole Woman’s Health v. Hellerstadt, or Chief Justice Roberts in June Medical Services v. Russo, to keep abortion legal and available. Without her, I doubt any of the more liberal justices on the bench has the sufficient force of personality and skill of persuasion to convince enough of the conservative majority to break ranks and keep abortion legal.
I did not agree with every decision Justice Ginsburg made. But I never doubted her heart, her intelligence, and her commitment to protecting the downtrodden. She stood for justice, and not a heartless, cold justice, but instead a living, breathing one that weighed the impact of decisions on real people’s lives. That small, seemingly frail woman was a true titan of equality. Alas, we, will not see her like again.
May her memory be a blessing.