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Bench Memos

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Ginsburg vs. Mother’s Day, Round Two



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I plan to say more tomorrow on Al Franken’s “highest and closest authority” who misled him into thinking that Ruth Bader Ginsburg hadn’t proposed the abolition of Mother’s Day. But in case my previous post left the impression that Ginsburg’s opposition to Mother’s Day was a youthful indiscretion, let me make clear that Ginsburg has recently expressed support for a treaty that, under her views, would very likely make Mother’s Day illegal.

On April 1, 2005, Ginsburg gave a badly confused speech (which I critiqued in my essay “Alien Justice”) that sought to defend the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution. In the course of that speech, Ginsburg referred to “the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, which, sadly, the United States has not yet ratified.”

Set aside for now the inappropriateness of Ginsburg’s commenting on the live political issue of whether the United States should ratify a particular treaty. It should not be surprising that a justice who doesn’t respect the difference between judging and legislating when she is deciding cases wouldn’t understand that there are political issues on which she should refrain from commenting.

Under this 1979 Convention, known as CEDAW, a signatory nation is subject to periodic reviews by a CEDAW Committee, which assesses the nation’s progress in fulfilling CEDAW’s terms. In 2000, this Committee criticized Belarus for celebrating Mother’s Day:

The Committee is concerned by the continuing prevalence of sex-role stereotypes and by the reintroduction of such symbols as a Mothers’ Day and a Mothers’ Award, which it sees as encouraging women’s traditional roles. It is also concerned whether the introduction of human rights and gender education aimed at countering such stereotyping is being effectively implemented.
In short, the CEDAW Committee saw Mother’s Day as a violation of CEDAW.

If Ginsburg is going to look to the views of international bureaucrats to decide what the Constitution means, then it goes without saying that, if the United States were to ratify CEDAW, she would give even greater weight to the views of the CEDAW committee in determining the obligations of the United States under CEDAW.

Some entity called the United Nations Association of the United States of America disputes that CEDAW would abolish Mother’s Day. Amusingly, UNAUSA offers this defense of the CEDAW committee’s action: “The committee was disapproving only of Belarus’ particular version of Mothers’ Day which promoted stereotypical roles for women; it was not condemning the general practice of celebrating Mothers’ Day.”

It’s hard to credit UNAUSA’s defense since the CEDAW committee did not identify any particular features of Belarus’s Mother’s Day that it found objectionable. Instead, the CEDAW Committee objected to the fact that Mother’s Day “encourage[es] women’s traditional roles.” Thus, the CEDAW committee can be expected to approve a general practice of celebrating Mother’s Day only when lots of men are mothers.



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