At a turning point in history where most of the male members of the US supreme court seemed unsure which way to turn, one justice stood out during Tuesday’s hearing on the constitutionality of gay marriage for her spatial awareness.

Ruth Bader Ginsburg has long been a liberal champion – dubbed ‘Notorious RBG’ by her younger fans – for her withering dissent from the court’s increasingly conservative consensus.

But while her preference for supporting equal rights in this case was never in doubt, what was striking on Tuesday was how her willingness to place it along the civil rights continuum allowed her to cut through the argument in a way even the court’s conservative firebrands struggled to do.

“Marriage today is not what it was under the common law tradition, under the civil law tradition,” said Ginsburg when Justices Roberts and Kennedy began to fret about whether the court had a right to challenge centuries of tradition.

“Marriage was a relationship of a dominant male to a subordinate female,” she explained. “That ended as a result of this court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down … Would that be a choice that state should [still] be allowed to have? To cling to marriage the way it once was?”

“No,” replied John Bursch, the somewhat chastised lawyer for the states who are seeking to preserve their ban on gay marriage.

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Bursch was similarly eviscerated by Ginsburg when he tried to argue that the sole purpose of marriage was to ensure a stable relationship for procreation.

“Suppose a couple, 70-year-old couple, comes in and they want to get married?” remarked the 82-year-old Ginsburg, to laughter, after a protracted debate over whether it was fair to ask couples if they wanted children before allowing them to wed.

“You don’t have to ask them any questions. You know they are not going to have any children.”

Conversely she came to the rescue of a lawyer for the petitioners when he floundered on the question of whether states that ban gay marriage should have to recognise weddings carried out in other states.

Would they be allowed to refuse recognition in other cases? Such as where another state allowed the marriages of children after puberty, Justice Alito wanted to know.

“I think, the presumption would be in such a state that someone age 13 can’t consent,” interjected Ginsburg helpfully.

In the end, her bottom line – rejecting the notion that extending marriage rights would somehow weaken the institution – was persuasive enough that even chief justice Roberts appeared sympathetic.

“All of the incentives, all of the benefits that marriage affords would still be available,” said Ginsburg. “So you’re not taking away anything from heterosexual couples. They would have the very same incentive to marry, all the benefits that come with marriage that they do now.”



If this had been a civil injury case, it might have been thrown out right then. Instead, campaigners for marriage equality will have to wait until June to see if Ginsburg’s colleagues see it that way too.