Justice Ginsburg, Prostitution, and Polygamy:

Slate's Dahlia Lithwick writes, as an aside in a piece on John Roberts:

Lest you think I'm being too easy on Senate Republicans, I hasten to add that Lindsey Graham's (and today, John Cornyn's) disgraceful use of these hearings to attack Ruth Bader Ginsburg as a champion of legalized prostitution, polygamy, and pederasty is beyond vile. . . . [E]ven as [conservatives] call for bipartisanship, they can't seem to resist attacking a judge with distorted versions of her 30 year old writings. Nice.

Yet it seems to me that there's no real "distort[ion]" of Justice Ginsburg's views on prostitution, polygamy, and lowering the age of consent; and it's hard therefore to see why there's any "disgraceful" or "vile" in the Republicans' arguments. I've blogged here about the age of consent question [UPDATE: since posting this, I have concluded that Justice Ginsburg was likely the victim of a drafting error as to the age of consent, and the report's critics, including me, themselves erred in not seeing the error on this particular matter], but let me speak a bit more about prostitution and polygamy. Sex Bias in the U.S. Code (1977), on which Ginsburg was one of the two lead coauthors, has this to say (among other things) about prostitution (pp. 97-102; there is similar text at pp. 72-76 of a 1974 version of the report):

These [federal] prostitution proscriptions are subject to several constitutional and policy objections. Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions. See Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973). But sex-neutralizing the statutory language is unlikely to effect significant substanive change, for enforcement concentrates on the female even when male prostitution is encompassed in the same category. With the exception of several communities where it is police policy to arrest the client also, it is realistic to expect that vigorous enforcement will be directed against the person who patronize a prostitute. . . .

Although S. 1400 §1841, in contrast to the Mann Act which it would replace, is cast in sex-neutral form, retaining prostitution business as a crime in a criminal code is open to debate. Reliable studies indicate that prostitution is not a major factor in the spread of venereal disease, and that prostitution plays a small and declining role in organized crime operations. . . .

Recommendations . . .

18 U.S.C. §§1384, 1952(b), 2421-2424 [the prostitution sections that the report was referring to] — Repeal these sections.

The report also has this to say about polygamy (pp. 195-196; see pp. 190-191 for similar text in the 1974 version):

This section [48 U.S.C. §1461] restricts certain rights, including the right to vote or hold office, of bigamists, persons "cohabiting with more than one woman," and women cohabiting with a bigamist. Apart from the male/female differentials, the provision is of questionable constitutionality since it appears to encroach impermissibly upon private relationships. [Endnote: Cf. Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 439 (1972).]

Recommendations . . .

48 U.S.C. §1461 - substitute 'person' or 'individual' for 'woman.' If the section is retained, it should be narrowed to avoid conflict with constitutionally-protected privacy interests.

So the report indeed spoke out in favor of legalizing prostitution: It (1) suggested that prostitution laws are "arguably" unconstitutional under the right of privacy, (2) argued that they are in practice nearly certain to be enforced in sex-discriminatory ways, and that (3) expressly recommended that they be repealed. It thus is no distortion at all, I think, to suggest that Justice Ginsburg supported legalization of prostitution, given that her name is indeed on the report, and that it's unlikely that she would have just missed an extended substantive passage such as this one.

It also seems to me that the report can fairly be read as favoring the legalization of polygamy. It is conceivable that it might have been objecting only to restrictions imposed on women who are not themselves purporting to be married to a bigamist, but who are simply living with the bigamist without claiming a marriage. But given that the section was in practice likely to be focused on people who are indeed purporting to be living in plural marriages, it seems that the report was indeed suggesting that the ban on polygamy was illegal. (Note that the section could not be reasonably read, I think, as objecting solely to stripping polygamists of the right to vote: Given that it's permissible to strip someone of the right to vote because of his past crimes, the constitutional objection must be that polygamy can't be criminalized in the first instance. Moreover, the objection is to "encroach[ing] impermissibly upon private relationships," with cites to the right-of-privacy cases, not to encroaching impermissibly upon voting rights.)

So in any event, it seems to me that assertions that Ginsburg supported legalizing polygamy are at most potential overreadings of the report — albeit overreadings that are perfectly plausible, though not the most careful, interpretations — and not "vile" "disgraceful" "distort[ions]." And, as I said, such assertions about her supporting legalized prostitutions seem to be completely accurate.

As I noted in my earlier post, one could argue that Justice Ginsburg only believed this in the past, and might not believe this now, 30 years later. But she was in her 40s at the time, and a mature legal scholar; and there seems to me to be little independent evidence that she's changed her mind. It thus seems like a fair inference that she has kept her views, and there seems to me little vile, disgraceful, or distorted in making such an inference.

Likewise, it seems to me that Timothy Noah, Slate's Chatterbox, is mistaken in generally characterizing as "ridiculously distorted" Ed Whelan's quotes from Justice Ginsburg's report. Ed Whelan wrote, quoting the 1974 version of the report:

“Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions.” [72]

A statutory restriction on political rights of bigamists “is of questionable constitutionality since it appears to encroach impermissibly upon private relationships.” [190-191]

“Sex-segregated adult or juvenile institutions are obviously separate and in a variety of ways, unequal. . . . If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected.” [75]

“The Boy Scouts and the Girl Scouts, while ostensibly providing ‘separate but equal’ benefits to both sexes, perpetuate stereotyped sex roles to the extent that they carry out congressionally-mandated purposes.” [131]

“Replacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parents’ Day’ should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.” [133]

Other nuggets abound. For example, Ginsburg recommended that the age of consent for purposes of statutory rape be lowered from 16 to 12. [See pages 69-71 and the specific recommendation regarding 18 U.S.C. § 2032 on page 76.]

As best I can tell, all of these quotes are quite sound, and in context. They may have profited from slightly more context — see, for instance, the Boy Scouts/Girl Scouts quote, which in context gives more evidence of the stereotyped sex roles that Justice Ginsburg was referring to. But none of them strike me as being particularly out of context, as you can see for yourself by looking at the 1974 version of the report, posted by Mr. Whelan.

Again, then, it seems to me that the critics of Justice Ginsburg are more sinned against than sinning here. They are pretty accurately describing Justice Ginsburg's views, and being undeservedly called names because of it.