Supreme Court Justice Ruth Bader Ginsburg (Notorious R.B.G.) is nearly perfect in my feminist book of idols, but here and there, everybody will make problematic comments, including her.
In an interview with Katie Couric on Yahoo!, released Monday, Ginsburg dubbed San Francisco 49ers quarterback Colin Kaepernick's choice to kneel and sometimes sit down during the National Anthem prior to games as “dumb and disrespectful.”
"I think it's really dumb of them [players who followed Kaepernick's example],” she said. “Would I arrest them for doing it? No. I think it's dumb and disrespectful. I would have the same answer if you asked me about flag burning.”
We all love Ginsburg, and I hate to criticize her here, but it’s not “dumb and disrespectful” to stand up – or in this case – kneel down for your values. As someone who considers Ginsburg a genius, I expected a more compelling or thoughtful analysis, especially since Kaepernick's decision is for social justice reasons.
Under the First Amendment, people can't be compelled to stand for nationalistic or religious ceremonies if they don't want to. That includes the National Anthem.
A similar thing happened to plaintiffs in AU’s ongoing Fields v. Speaker of the Pennsylvania House of Representatives lawsuit, which is about inclusive invocations, when officials of the Pennsylvania House of Representatives tried to compel five state residents to stand during prayers.
This issue also flares up occasionally in public schools, where students are sometimes told they have to stand for the Pledge of Allegiance even if they object to it on religious grounds or for some other reason. They have the right to remain seated.
There's nothing wrong or dumb whether you do this or protest against it.
Now, Ginsburg is neither drawing a parallel to these cases nor is she arguing that Kaepernick and other players should be compelled to stand with her comments, but she is promoting nationalism as the more moral option. This simplifies the thoughtfulness behind Kaepernick's protest and the Black Lives Matter movement.
“I think it’s a terrible thing to do, but I wouldn’t lock a person up for doing it,” Ginsburg continued. “I would point out how ridiculous it seems to me to do such an act... If they want to be stupid, there’s no law that should be preventive.”
While she’s on the right track of respecting the legal right to protest, Ginsburg, unfortunately, didn’t seem to grasp the power behind symbolic forms of protest.
“If they want to be arrogant, there’s no law that prevents them from that,” Ginsburg said. “What I would do is strongly take issue with the point of view that they are expressing when they do that."
It’s disappointing. Ginsburg, who is Jewish and a woman, had to oppose institutionalized forms of bias to get a foothold in the legal world. In fact, elsewhere in the interview, she talked about the sting of anti-Semitism, remarking, “All I can say is I am sensitive to discrimination on any basis because I have experienced that upset.” I assumed she would sympathize more with Americans who are using social protest as a vehicle to amplify their voices.
It’s not “dumb” or “stupid” to raise awareness of this country’s injustices or to decline, on the grounds of conscience, to take part in exercises that compel piety and promote nationalism. It’s often brave and bold.
I love and admire Ginsburg – but I wish she had given a more thoughtful response to this ongoing debate.