Marriage is no longer bound to antiquated gender roles. And when those gender roles are removed, the case for marriage discrimination breaks down.

“ wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.

There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t — wouldn’t fit into what marriage was once.”

Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. 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 be allowed to have? To cling to marriage the way it once was?

*Head and Master laws were a set of property laws in the U.S. that gave the husband the final authority in all household decisions on the basis that the husband’s role was to provide for the family and the wife’s was to keep house, rear children, and provide sex.*


Bursch also tried to assert that gay marriage would be detrimental to the institution of marriage in general. Not so, Ginsburg responded.

"All of the incentives, all of the benefits that marriage affords would still be available. 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."

"The change in people’s attitudes on that issue has been enormous," Ginsburg continued. "In recent years, people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor — we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us."