Does anyone besides clerks take the time to read the entirety of the Supreme Court’s opinions? Glad someone did, because buried in Ruth Bader Ginsburg’s majority opinion in Christian Legal Society v. Martinez (UC Hastings), where the University of California was told it could continue denying recognition to a Christian student group, was a not-so-ambiguous statement about the gays.
“Our decisions have declined to distinguish between status and conduct in this context,” wrote Ginsburg in what some are calling a “time bomb,” often favored by Justice William J. Brennan Jr., that’ll force the Court’s hand when it deals with gays — and their marriage rights — down the road.
Justice Ginsburg’s bland talk about status and conduct was significant because courts are more apt to protect groups whose characteristics are immutable. Calling sexual orientation a status may not require the conclusion that being gay is immutable rather than a choice, but it certainly suggests it.
There was something broader going on, too, said Suzanne B. Goldberg, a law professor at Columbia. “The court is talking about gay people, not homosexuals, and about people who have a social identity rather than a class of people who engage in particular sex acts,” Professor Goldberg said.
The plaintiffs in California’s Prop 8 trial poured over the decision and told Judge Vaughn Walker what they thought it meant: That gays are part of “an identifiable class” and cannot be discriminated against, which makes Ginsburg’s comments, reporter Adam Liptak writes, “both a time bomb and a tea leaf that will figure in litigations concerning same-sex marriage on two coasts.”