“I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious.”
…I have several times explained why government actors, including state universities, need not be blind to the lingering effects of “an overtly discriminatory past,” the legacy of “centuries of law-sanctioned inequality.”
…As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.”
— Justice Ginsburg
JUSTICE GINSBURG: Mr. Clement, the problem is if we are totally for the States’ decision that there is a marriage between two people, for the Federal Government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people - if that set of attributes, one might well ask, what kind of marriage is this?
JUSTICE KAGAN: Well, is what happened in 1996—and I’m going to quote from the House Report here—is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”
JUSTICE GINSBURG: They’re not—they’re not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive. It’s not as though, well, there’s this little Federal sphere and it’s only a tax question.
It’s —it’s— as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You’re saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage. #SkimMilkMarriage #Dead
JUSTICE KAGAN: So, this was a real difference in the uniformity that the Federal Government was pursuing. And it suggests that maybe something—maybe Congress had something different in mind than uniformity.
everybody’s favorite group in the world, that we look at those cases with some—even if they’re not suspect—with some rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’s judgment was infected by dislike, by fear, by animus, and so forth?
JUSTICE KENNEDY: That — that would give you intellectual whiplash
JUSTICE SOTOMAYOR: And the issue wasn’t joined. So what do you think we meant? And I know Justice Scalia doesn’t care what you think we meant.
JUSTICE GINSBURG: Have we ever granted standing to proponents of ballot initiatives?
MR. COOPER: No, Your Honor, the Court has not done that.