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History > 2014 > USA > Gay rights (II)
F.D.A. Easing Ban on Gays,
to Let Some Give Blood
DEC. 23, 2014
The New York Times
By SABRINA TAVERNISE
WASHINGTON — The Food and Drug Administration announced Tuesday
that it would scrap a decades-old lifetime prohibition on blood donation by gay
and bisexual men, a major stride toward ending what many had seen as a national
policy of discrimination.
However, the agency will continue to ban men who have had sex with a man in the
last year, saying the barrier is necessary to keep the blood supply safe, a move
that frustrated rights groups that were pushing for the ban to be removed
entirely.
The F.D.A. enacted the ban in 1983, early in the AIDS epidemic. At the time,
little was known about the human immunodeficiency virus, which causes the
disease, and there was no quick test to determine whether somebody had it. But
science — and the understanding of H.I.V. in particular — has advanced in the
intervening decades. On Tuesday the F.D.A. acknowledged as much, lifting the
lifetime ban but keeping in place a block on donations by men who have had sex
with other men in the last 12 months.
The F.D.A. rules on blood donation generally include very wide margins of error.
For example, it bars anyone who has traveled in areas where malaria is common
from giving blood for a year, even though malaria symptoms are almost
unmistakable — chills and fever — and virtually always appear within 40 days.
The agency also has a 12-month waiting period for heterosexuals who, among other
activities, have sex with prostitutes or with people who inject drugs.
Restrictions on donors were written when H.I.V. testing was slower and less
refined. Today, some tests can detect the virus in blood as little as nine days
after infection.
In written remarks, the agency said it was keeping the 12-month ban because
“compelling scientific evidence is not available at this time to support a
change to a deferral period less than one year while still ensuring the safety
of the blood supply.”
The shift puts the United States on par with many European countries, including
Britain, which adjusted its lifetime ban in favor of a 12-month restriction in
2011.
Most men’s health advocates called the move long overdue, and said that the
overall ban was not based on the latest science and that it perpetuated a stigma
about gay men as a risk to the health of the nation. Legal experts said the
change brought an important national health policy in line with other legal and
political rights for gay Americans, like permitting gay people to marry and to
serve openly in the military.
“This is a major victory for gay civil rights,” said I. Glenn Cohen, a law
professor at Harvard who specializes in bioethics and health. “We’re leaving
behind the old view that every gay man is a potential infection source.” He
said, however, that the policy was “still not rational enough.”
Indeed, some advocacy groups attacked the change as too incremental. Leaving in
place a 12-month ban essentially blocks any gay or bisexual man who is sexually
active from donating, erasing about half the population of potential donors and
perpetuating what rights groups say is tougher treatment for gay and bisexual
men.
G MHC, the advocacy group formerly known as Gay Men’s Health Crisis, called the
new policy “offensive and harmful.” AIDS United, a Washington-based lobbying
group, said that it was a “step forward,” but that it “continues to perpetuate
discrimination against gay and bisexual men.”
Today doctors have nucleic acid tests that can diagnose an H.I.V. infection
within nine to 11 days of exposure, and all blood donations have to be tested
before being shipped for transfusion.
“Many other Western countries had changed their policies, and I think the F.D.A.
has come to accept the science supporting a change to their policy also,” said
Debra Kessler, director of special donor services at the New York Blood Center.
She said blood centers across the country “have been talking to the F.D.A. for
years to encourage them to move forward.”
In a statement, the agency said that it had “carefully examined and considered
the scientific evidence” and that it intended to issue a draft guidance
detailing the change in 2015. An F.D.A. official told reporters that there was
not enough science to support lifting the 12-month ban, an assertion that men’s
health groups dispute.
“At this time we simply do not have the evidence to suggest that we can go to a
shorter period,” said Dr. Peter Marks, deputy director of the F.D.A.’s Center
for Biologics Evaluation and Research.
The agency’s decision seems to have been guided by data that emerged after
similar policy changes in other countries. For example, Dr. Marks cited data
from Australia, where studies have shown no increased risk to the blood supply
after the country changed the ban from lifetime to a year.
Other groups applauded the shift, pointing out that it had been pushed for years
by medical experts, blood banks and gay men’s health organizations that argued
that the policy had long outlived its usefulness for safety in the blood supply.
“A lot has changed since 1983,” said Sean Cahill, director of health policy
research at the Fenway Institute, a research and advocacy center in Boston. He
called the shift “an important incremental step toward a better policy. That’s
how policies often change — incrementally.”
While the burden of H.I.V. in the United States falls disproportionately on gay
and bisexual men — Mr. Cahill cited estimates from the Centers for Disease
Control and Prevention that two-thirds of an estimated 50,000 new H.I.V.
infections in the United States each year occur among men who have sex with men
— the vast majority of gay and bisexual men are not H.I.V. positive. The
1980s-era policy essentially ignored that fact by counting every single man who
had had sex with a man since 1977 as suspect.
About 8.5 percent of American men — or about 10 million people — report having
had sex at least once with a man since turning 18, according to the Williams
Institute at the University of California, Los Angeles. (Blood banks, however,
know that donors do not always tell the truth about their sexual activity on
questionnaires.) The institute has calculated that the rules change could add
about 317,000 pints of blood to the nation’s supply annually, an increase of 2
percent to 4 percent.
The new policy will exclude the 3.8 percent of American men who report having
had a male sexual partner in the past year, a group that could double the
potential new supply, the institute said.
The policy, which will go through a public comment period next year, comes at a
time when the nation’s blood supply is relatively stable, Ms. Kessler said, in
part because of changes in hospitals and ways of collecting blood.
Rights groups say that current policy is unfair because it blocks a sexually
active gay man from donating even if he has had only one sexual partner, has
protected sex, and has not been exposed to H.I.V., while it allows sexually
active heterosexual men and women who may have been exposed to H.I.V. to donate.
They also argue that the lifetime ban stigmatizes homosexuality, making it seem
like being gay is a risk in and of itself.
They say the policy should be more individualized, like Italy’s, in which
potential donors are interviewed to screen for higher-risk donors, like people
with multiple sexual partners or who report sex with intravenous drug users or
prostitutes.
Dr. Marks said the agency was putting a surveillance system into place that
would help the agency monitor the effect of the policy change.
Donald G. McNeil Jr. contributed reporting from New York.
A version of this article appears in print on December 24, 2014, on page A1 of
the New York edition with the headline: F.D.A. Easing Ban on Gays, to Let Some
Give Blood.
F.D.A. Easing Ban on Gays, to Let Some Give
Blood, NYT, 23.12.2014,
http://www.nytimes.com/2014/12/24/health/fda-lifting-ban-on-gay-blood-donors.html
One Step Closer to Marriage Equality
OCT. 6, 2014
The New York Times
The Opinion Pages | Editorial
By THE EDITORIAL BOARD
On Monday morning, the first day of the Supreme Court’s new term,
the most exhilarating news came not from anything the justices did, but from one
thing they didn’t do. Without explanation and against expectations, the court
declined to hear any of the seven petitions asking them to reject a
constitutional right to same-sex marriage. By choosing not to review those
cases, the justices made it possible for same-sex couples in a majority of
states to marry.
Since June, three federal appeals courts have struck down marriage bans in
Virginia, Indiana, Wisconsin, Oklahoma and Utah, but each ruling was stayed
until the Supreme Court had a chance to weigh in. Within hours of the court’s
announcement on Monday, marriages began taking place, giving long-overdue
legitimacy to thousands of same-sex couples. The right also extends to residents
in six other states in the appellate circuits covered by those appeals courts.
Thirty states and the District of Columbia — home to about 60 percent of
Americans — could soon allow same-sex marriage. That number is likely to grow
after a ruling from the Court of Appeals for the Ninth Circuit, which last month
heard arguments over state bans in Idaho and Nevada and is expected to strike
them down.
What a difference a decade makes! In 2004 alone, a dozen states passed
constitutional amendments banning same-sex marriage; eight went so far as to ban
all legal recognition of same-sex couples. The future looked bleak.
But, in June 2013, the Supreme Court struck down the heart of the federal
Defense of Marriage Act, which defined marriage as between a man and a woman.
The clear and unconstitutional purpose of the law, Justice Anthony Kennedy wrote
for the majority in United States v. Windsor, was “to impose a disadvantage, a
separate status, and so a stigma” on same-sex couples.
Since the court’s holding in Windsor, more than 40 federal and state courts
around the country have relied on its sound reasoning almost unanimously to
strike down state bans on same-sex marriage.
Among other things, they have rejected the absurd, baseless arguments that
same-sex marriage harms children or undermines heterosexual marriage. In his
opinion for the Seventh Circuit Court of Appeals, Judge Richard Posner wrote,
“The only rationale that the states put forth with any conviction — that
same-sex couples and their children don’t need marriage because same-sex couples
can’t produce children, intended or unintended — is so full of holes that it
cannot be taken seriously.”
It has been astonishing and moving to see the unprecedented speed with which the
public and the judiciary have come around on the issue. A majority of Americans
now support the right of same-sex couples to marry, compared with about a
quarter in 1996. Among those under 30, support is at nearly 80 percent.
But the forces against marriage equality are not going down without a fight. In
nearly half the country, gay and lesbian couples are still treated as
second-class citizens, denied the respect and dignity — as well as the tangible
financial benefits — that come with the ability to marry.
In a speech last month, Justice Ruth Bader Ginsburg, who last year became the
first justice to officiate at a same-sex wedding, said that the court is keeping
an eye on developments in the lower courts, but that there is “no need for us to
rush.” Why not?
Every day that the justices do not declare a constitutional right to same-sex
marriage, a child in San Antonio feels confusion and shame that her fathers
cannot get married; a woman in Atlanta is prohibited from making emergency
medical decisions for her life partner; a man in Biloxi, Miss., is denied
veteran’s survivor benefits after his husband dies. The consequences of being
treated as inferior under the law are real, immediate and devastating.
Same-sex marriage is among the most important civil-rights issues of our time,
and the country is ready to resolve it once and for all. The justices have all
the information they need to rule that there is a constitutional right to
same-sex marriage. What are they waiting for?
A version of this editorial appears in print on October 7, 2014,
on page A28 of the New York edition with the headline: One Step Closer to
Marriage Equality.
One Step Closer to Marriage Equality, NYT,
6.10.2014,
http://www.nytimes.com/2014/10/07/opinion/
one-step-closer-to-marriage-equality.html
Supreme Court Delivers
Tacit Win to Gay Marriage
OCT. 6, 2014
The New York Times
By ADAM LIPTAK
WASHINGTON — The Supreme Court on Monday let stand appeals court
rulings allowing same-sex marriage in five states, a major surprise that could
signal the inevitability of the right of same-sex marriage nationwide.
The development cleared the way for same-sex marriages in Indiana, Oklahoma,
Utah, Virginia and Wisconsin. Gay and lesbian couples started getting married in
those states within hours.
The decision to let the appeals court rulings stand, which came without
explanation in a series of brief orders, will have an enormous practical effect
and may indicate a point of no return for the Supreme Court.
Most immediately, the Supreme Court’s move increased the number of states
allowing same-sex marriage to 24, along with the District of Columbia, up from
19. Within weeks legal ripples from the decision could expand same-sex marriage
to 30 states.
That means nearly two-thirds of same-sex couples in the United States will soon
live in states where they can marry, according to the Williams Institute at the
University of California, Los Angeles, School of Law.
Should the court then take up a same-sex marriage case next year or in another
term, the justices may be reluctant to overturn what has become law in the
majority of American states, said Walter E. Dellinger III, who was an acting
United States solicitor general in the Clinton administration.
“The more liberal justices have been reluctant to press this issue to an
up-or-down vote until more of the country experiences gay marriage,” Mr.
Dellinger said. “Once a substantial part of the country has experienced gay
marriage, then the court will be more willing to finish the job.”
There is precedent for such an approach: The court waited to strike down bans on
interracial marriage until 1967, when the number of states allowing such unions
had grown to 34, even though interracial marriage was still opposed by a
significant majority of Americans. But popular opinion has moved much faster
than the courts on same-sex marriage, with many Americans and large majorities
of young people supporting it.
Opponents of same-sex marriage expressed frustration with the development. John
C. Eastman, a law professor at Chapman University, said it was “beyond
preposterous” for federal courts rather than the democratic process to define
the meaning of marriage. Supporters of traditional marriage vowed to continue
their fight, noting that several federal appeals courts are yet to be heard
from.
“The court’s decision not to take up this issue now means that the marriage
battle will continue,” said Byron Babione, a lawyer with Alliance Defending
Freedom. “The people should decide this issue, not the courts.”
Monday’s orders specifically let stand decisions from three federal appeals
courts striking down bans on same-sex marriage in Indiana, Oklahoma, Utah,
Virginia and Wisconsin. Those three courts, which together have jurisdiction
over six additional states that ban same-sex marriage — Colorado, Kansas, North
Carolina, South Carolina, West Virginia and Wyoming — will almost certainly
follow their own precedents to strike down those other bans as well. That would
bring the number of states with same-sex marriage to 30.
Other appeals courts are likely to rule soon on yet other marriage bans,
including the United States Court of Appeals for the Ninth Circuit in San
Francisco, which has jurisdiction over nine states, five of which still have
same-sex marriage bans. If that court rules in favor of same-sex marriage, as
expected, it will be allowed in 35 states.
The justices had earlier acted to stop same-sex marriages in Utah and Virginia,
issuing stays to block appeals court rulings allowing them. Other appeals court
decisions had been stayed by the appeals courts themselves.
The nearly universal consensus from Supreme Court observers had been that the
stays issued by the justices indicated that they wanted the last word before
federal courts transformed the landscape for same-sex marriage. But in recent
remarks, Justice Ruth Bader Ginsburg said there was no urgency for the court to
act until a split emerged in the federal appeals courts, which recently have all
ruled in favor of same-sex marriage.
Justice Ginsburg has often counseled moving slowly, a lesson she said she had
learned from the backlash that followed Roe v. Wade, the 1973 decision that
established a constitutional right to abortion. “It’s not that the judgment was
wrong,” she has said, “but it moved too far, too fast.”
Proponents of same-sex marriage were confident they would have prevailed in the
Supreme Court had it agreed to hear one of Monday’s cases. They took the unusual
step of urging the justices to step in though they had won in the lower courts.
Even as they welcomed Monday’s developments, some expressed frustration that the
court had not acted more forcefully.
“The court’s delay in affirming the freedom to marry nationwide prolongs the
patchwork of state-to-state discrimination and the harms and indignity that the
denial of marriage still inflicts on too many couples in too many places,” said
Evan Wolfson, the president of Freedom to Marry.
The justices last agreed to hear a constitutional challenge to a same-sex
marriage ban, California’s Proposition 8, in December 2012. But a majority of
the justices said in June 2013 that the case was not properly before the court.
That move indicated that the Supreme Court wanted to stay out of the fray until
more states allowed same-sex marriage.
If the court took pains to avoid a resolution of whether there was a
constitutional right to same-sex marriage in the California case, Hollingsworth
v. Perry, it set the groundwork for a definitive answer in a second decision
issued the same day. That ruling, United States v. Windsor, struck down the part
of the federal Defense of Marriage Act that barred federal benefits for same-sex
couples married in states that allowed such unions.
The decision was based on a muddle of rationales. In his dissent, Justice
Antonin Scalia challenged readers of Justice Anthony M. Kennedy’s majority
opinion to follow its “disappearing trail” of “legalistic argle-bargle.”
But lower courts seemed to have no trouble understanding what the Windsor
decision had to say about a constitutional right to same-sex marriage. In a
remarkable and essentially unbroken line of about 40 decisions, state and
federal courts have relied on Windsor to rule in favor of same-sex marriage.
In his own dissent in the Windsor case, Chief Justice John G. Roberts Jr.
cautioned that the decision was a limited one, buttressing his assertion with a
quotation from the majority opinion.
“The court does not have before it, and the logic of its opinion does not
decide, the distinct question whether the states, in the exercise of their
‘historic and essential authority to define the marital relation,’ may continue
to utilize the traditional definition of marriage,” he wrote.
“We may in the future have to resolve challenges to state marriage definitions
affecting same-sex couples,” he added. “That issue, however, is not before us in
this case.”
But lower-court judges seemed inclined to agree with Justice Scalia’s assessment
of where things were heading.
“By formally declaring anyone opposed to same-sex marriage an enemy of human
decency,” Justice Scalia wrote, “the majority arms well every challenger to a
state law restricting marriage to its traditional definition.”
A version of this article appears in print on October 7, 2014,
on page A1 of the New York edition with the headline: Supreme Court Delivers
Tacit Win to Gay Marriage.
Supreme Court Delivers Tacit Win to Gay
Marriage, NYT, 7.10.2014,
http://www.nytimes.com/2014/10/07/us/
denying-review-justices-clear-way-for-gay-marriage-in-5-states.html
Denying Review,
Justices Clear Way
for Gay Marriage in 5 States
OCT. 6, 2014
The New York Times
By ADAM LIPTAK
WASHINGTON — The Supreme Court on Monday denied review in all
five pending same-sex marriage cases, clearing the way for such marriages to
proceed in Indiana, Oklahoma, Utah, Virginia and Wisconsin.
The move was a major surprise and suggests that the justices are not going to
intercede in the wave of decisions in favor of same-sex marriage at least until
a federal appeals court upholds a state ban.
The move will almost immediately increase the number of states allowing same-sex
marriage from 19 to 24, along with the District of Columbia.
The justices had earlier acted to stop same-sex marriages in Utah and Virginia,
issuing stays to block appeals court rulings allowing them. Other appeals court
decisions had been stayed by the appeals court themselves.
The all but universal consensus from observers of the Supreme Court had been
that the stays issued by the justices indicated that the justices wanted the
last word before federal courts transformed the landscape for same-sex marriage.
But in recent remarks, Justice Ruth Bader Ginsburg said there was no urgency for
the court to act until a split emerged in the federal appeals courts, all of
whose recent decisions have ruled in favor of same-sex marriage.
The justices last agreed to hear a constitutional challenge to a same-sex
marriage ban, California’s Proposition 8, in December 2012. But a majority of
the justices said it was not properly before the court. That move indicated that
the Supreme Court may have wanted to stay out of the fray until the number of
states allowing same-sex marriage was much higher.
There is precedent for such an approach. The court waited until 1967, for
instance, to strike down bans on interracial marriage, when the number of states
allowing such unions had grown to 34, though it was still opposed by a
significant majority of Americans.
Denying Review, Justices Clear Way for Gay
Marriage in 5 States,
NYT, 6.10.2014,
http://www.nytimes.com/2014/10/07/us/
denying-review-justices-clear-way-for-gay-marriage-in-5-states.html
Justices’ Rulings Advance Gays;
Women Less
So
AUG. 4, 2014
By ADAM LIPTAK
WASHINGTON —
When Justice Ruth Bader Ginsburg reflects on the Supreme Court’s recent rulings,
she sees an inconsistency.
In its gay rights rulings, she told a law school audience last week, the court
uses the soaring language of “equal dignity” and has endorsed the fundamental
values of “liberty and equality.” Indeed, a court that just three decades ago
allowed criminal prosecutions for gay sex now speaks with sympathy for gay
families and seems on the cusp of embracing a constitutional right to same-sex
marriage.
But in cases involving gender, she said, the court has never fully embraced “the
ability of women to decide for themselves what their destiny will be.” She said
the court’s five-justice conservative majority, all men, did not understand the
challenges women face in achieving authentic equality.
Justice Ginsburg is not the only one who has sensed that cases involving gay
people and women are on different trajectories.
Gay men and lesbians still have a long way to go before they achieve the formal
legal equality that women have long enjoyed. But they have made stunning
progress at the Supreme Court over the last decade, gaining legal protection for
sexual intimacy and unconventional families with stirring language unimaginable
a generation ago.
At the same time, legal scholars say, the court has delivered blows to women’s
groups in cases involving equal pay, medical leave, abortion and contraception,
culminating in a furious dissent last month from the court’s three female
members.
Many forces are contributing to this divide, but the most powerful is the role
of Justice Anthony M. Kennedy, the court’s swing vote. Legal scholars say his
jurisprudence is marked by both libertarian and paternalistic impulses, ones
that have bolstered gay rights and dealt setbacks to women’s groups.
A Sacramento lawyer and lobbyist who still lived in the house he grew up in when
President Ronald Reagan nominated him to the Supreme Court in 1987, Justice
Kennedy is the product of a placid middle-class existence in which most women
stayed within traditional roles. Some of his judicial writing, Justice Ginsburg
once wrote in dissent, reflected “ancient notions about women’s place in the
family.”
But Justice Kennedy, 78, has long had gay friends, and his legal philosophy is
characterized by an expansive commitment to individual liberty. He wrote the
majority opinions in all three of the court’s gay rights landmarks, which struck
down a Colorado constitutional amendment that banned laws protecting gay men and
lesbians, a Texas law that made gay sex a crime, and the heart of the federal
Defense of Marriage Act.
Last year, he explained in vivid terms why the marriage law drew an
unconstitutional distinction by barring benefits for married same-sex couples.
“The differentiation demeans the couple, whose moral and sexual choices the
Constitution protects and whose relationship the state has sought to dignify,”
he wrote. “And it humiliates tens of thousands of children now being raised by
same-sex couples.”
Justice Kennedy writes in a different register in cases about women’s sexual
freedom and motherhood, said David S. Cohen, a law professor at Drexel
University.
In those cases, Justice Kennedy tends to vote with the court’s four more
conservative members — Chief Justice John G. Roberts Jr. and Justices Antonin
Scalia, Clarence Thomas and Samuel A. Alito Jr. — and to read statutes narrowly
in favor of employers and religious freedom. In an article in The South Carolina
Law Review surveying “Justice Kennedy’s gendered world,” Professor Cohen
concluded that “Justice Kennedy relies on traditional and paternalistic gender
stereotypes about nontraditional fathers, idealized mothers and second-guessing
women’s decisions.”
Perhaps the most memorable — and to women’s groups the most troubling — passage
of this sort came in Justice Kennedy’s 2007 majority opinion in a 5-to-4 vote
sustaining the federal Partial-Birth Abortion Ban Act.
“Respect for human life finds an ultimate expression in the bond of love the
mother has for her child,” he wrote. “While we find no reliable data to measure
the phenomenon, it seems unexceptionable to conclude some women come to regret
their choice to abort the infant life they once created and sustained.”
If Justice Kennedy best embodies the court’s conflicting impulses toward gays
and women, Justice Ginsburg is in many ways his opposite. She voted with him in
all of the major gay rights cases, but in women’s rights cases she has issued a
series of sharp dissents.
Justice Ginsburg, 81, was a prominent women’s rights litigator before she became
a judge, overcoming obstacles related to her gender along the way. After
attending Harvard Law School as one of nine women in a class of more than 500
and graduating from Columbia Law School, she was turned down by law firms and
was refused judicial clerkships because she was a woman. When she became a
professor at Rutgers School of Law, she was told she would be paid less than her
male colleagues because her husband, also a lawyer, had a good job. She later
became the first tenured female professor at Columbia Law School.
Speaking last week at a reception for students and alumni of Duke University
School of Law, she said the Supreme Court had made a grave error in June in its
Hobby Lobby decision, which allowed some employers to refuse to pay for
insurance coverage for contraception based on religious objections. “There was
no way to read that decision narrowly,” she said, adding that it opened the door
to job discrimination against women.
“What of the employer whose religious faith teaches that it’s sinful to employ a
single woman without her father’s consent or a married woman without her
husband’s consent?” she asked. The court, she said, “had ventured into a
minefield.”
She summarized her dissent in the Hobby Lobby case from the bench, a rare move
signaling vehement disagreement, one that happens perhaps four times a term.
When Justice Ginsburg issues an oral dissent, it is very often in a case
concerning women’s rights.
She dissented again from the bench in 2012 in Coleman v. Court of Appeals of
Maryland, a 5-to-4 decision limiting the availability of medical leaves. In his
controlling opinion, Justice Kennedy said he saw no “widespread evidence of sex
discrimination or sex stereotyping in the administration of sick leave,” while
Justice Ginsburg said from the bench that the decision made it harder for women
“to live balanced lives, at home and in gainful employment.”
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.
For now, said Suzanne B. Goldberg, a law professor at Columbia, “the court’s
recent gay rights decisions seem to be catching up with women’s rights cases of
earlier decades.”
“At the same time,” she added, “we live in a society that now seems more
receptive to gay rights than women’s rights generally, so it is disheartening
but not surprising to see that reflected in decisions like Hobby Lobby, which
failed to see the link between contraception access and women’s equality.”
Justice Ginsburg has suggested that her male colleagues sometimes do not hear a
woman’s voice, including her own. In a 2009 interview with USA Today, she said
the other justices, who were then all men, sometimes ignored the arguments she
made at their private conferences.
“I will say something — and I don’t think I’m a confused speaker — and it isn’t
until somebody else says it that everyone will focus on the point,” Justice
Ginsburg said.
Between 2006 and 2009, after the resignation of Justice Sandra Day O’Connor and
before the appointment of Justice Sonia Sotomayor, Justice Ginsburg was the lone
woman on the court, a situation she said she found isolating and disturbing.
Now, with the addition of Justice Elena Kagan in 2010, there are three women,
and they often vote together.
They did so last month in dissenting from an order allowing Wheaton College, a
Christian institution in Illinois, to forgo using a federal form to claim an
exemption from a contraception coverage requirement under the Affordable Care
Act. Justice Sotomayor wrote the dissent, which accused the majority of failing
to protect “women’s well-being.”
Nan Hunter, a law professor at Georgetown University, said the dissent was
noteworthy. “For many American women,” she said, “it was no surprise that it was
those three justices who felt strongly enough to cry foul.”
A version of
this article appears in print on August 5, 2014,
on page A1 of the New York edition with the headline: Justices’ Rulings Advance
Gays; Women Less So.
Justices’ Rulings Advance Gays; Women Less So, NYT, 4.8.2014,
http://www.nytimes.com/2014/08/05/us/
as-gays-prevail-in-supreme-court-women-see-setbacks.html
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