On the November 21 edition of Christian Broadcasting Network's (CBN) The 700 Club, host Pat Robertson, founder of the Christian Coalition, claimed that Supreme Court Justice Ruth Bader Ginsburg "believed in" polygamy, legalized prostitution, and lowering the age of consent to 12 years old. Robertson's comments were an apparent reference to a 1974 report that Ginsburg co-authored when she was general counsel for the American Civil Liberties Union. But contrary to Robertson's assertion, in the report, she did not express a personal belief on any of the three issues. Rather, she stated only that it is "arguable" that prostitution is protected under the Constitution and that legislation restricting the rights of bigamists or "persons cohabiting with more than one person" appeared to violate the Constitution. She took no position regarding the age of consent.
Robertson made the comments in response to the recent revelation that Supreme Court nominee Samuel A. Alito Jr. wrote in 1985 that "the Constitution does not protect the right to an abortion." Following a report on recent statements by leading Senate Democrats regarding the possibility of mounting a filibuster against the Alito nomination, Robertson said:
ROBERTSON: I think the Democrats are blowing smoke on this one. I don't think that that group of 14 senators is going to go along with a filibuster. What are extraordinary circumstances? The fact that 20 years ago, on a job application, he [Alito] said these were his views, and he goes before the committee, and he says, "Well, I've moderated my views over the last 20 years." How are they going to filibuster him? But look at Ruth Bader Ginsburg. The stuff that she believed in was absolutely outlandish, you know, polygamy, legalized prostitution, legalized -- the age of consent dropped to 12. And on and on. And the Republican Senate confirmed her almost unanimously.
Robertson's statement echoed others conservatives' claims about the "Ginsburg precedent" -- the label hatched shortly after the nomination of John G. Roberts Jr. to the Supreme Court to describe Ginsburg's 1993 Supreme Court confirmation process, in which, conservatives argue, Senate Republicans put aside their ideological differences, refrained from requiring her to answer questions that would signal how she would decide future cases, and approved her nomination by an overwhelming majority. In order to bolster their case that Republicans approved Ginsburg despite her purported liberal views, conservative commentators such as Wall Street Journal columnist Manuel Miranda and Fox News host Sean Hannity have distorted Ginsburg's 1974 report, titled "The Legal Status of Women Under Federal Law," falsely claiming that she advocated legalized prostitution and a lowered age of consent.
But in the report, Ginsburg did not assert her beliefs on these issues. On the matter of legalized prostitution, she wrote: "Prostitution as a consensual act between adults is arguably within the zone of privacy protected by recent constitutional decisions." Here she merely stated that an argument could be made that the act of prostitution is constitutionally protected. When the same issue arose during Ginsburg's 1993 confirmation hearings, Sen. Orrin Hatch (R-UT) agreed that the sentence could not be construed as a stated position, much less a belief: "You were making an academic point. I understand. I'm not trying to indicate that you were justifying prostitution."
Regarding the age of consent, Ginsburg's report noted a 1973 Senate bill as an example of legislation that rejected the "traditional sex discriminatory fashion" in which the United States Code defined rape. The bill laid out three circumstances as constituting rape, including that "the other person is, in fact, less than twelve years old." But Ginsburg cited the bill only for the purposes of noting its gender-neutral language and did not address the merits of the clause regarding "age of consent."
In the case of polygamy, Ginsburg questioned the constitutionality of legislation that restricted the right to vote or hold office of bigamists or "persons cohabiting with more than one person." Ginsburg wrote that the provision "appears to encroach impermissibly upon private relationships" and recommended that it "be narrowed to avoid conflict with constitutionally protected privacy interests." She did not, however, state any beliefs regarding the act of polygamy itself.