'Skim Milk Marriage' is the New 'Broccoli'

J.K. Trotter

During today's oral arguments before the Supreme Court, concerning the constitutionality of the Defense of Marriage Act, Associate Justice Ruth Bader Ginsburg remarked — to the delight of Twitter — that the lack of federal benefits for same-sex couples in states that gay marriage had created a tiered system for straights and gays, which she compared to the grades of milk one can purchase at a grocery store:

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. (Laughter.)

This isn't the first time Ginsburg has latched onto a food metaphor during proceedings for a high-profile Supreme Court decision. Last June, in the Supreme Court's ruling on the Affordable Care Act, Ginsburg flayed her Supreme Court Colleague for suggesting that the individual mandate, the Act's key mechanism, would establish a precedent under which the U.S. government could force Americans to consume broccoli. Witness her response (bolding ours):

As an example of the type of regulation he fears, THE CHIEF JUSTICE cites a Government mandate to purchase green vegetables. Ante, at 22–23. One could call this concern “the broccoli horrible.” Congress, THE CHIEF JUSTICE posits, might adopt such a mandate, reasoning that an individual’s failure to eat a healthy diet, like the failure to purchase health insurance, imposes costs on others. See ibid.

Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.9 Such “pil[ing of] inference upon inference” is just what the Court re­ fused to do in Lopez and Morrison. 

As we all know, the Supreme Court held up the Affordable Care Act — and thus the individual mandate — as constitutional, ending the long, Republican-led fight to overturn President Obama's biggest legislative accomplishment, at least using the courts. Still, conservative groups in Washington have put up less of a fight over the Defense of Marriage Act, and nobody really considers Obama's evolution on gay marriage a significant feat, so the presence of this food metaphor is probably less a portent of the Court's June ruling and, like so many things on Twitter, more of a silly coincidence.