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Did Justice Ruth Bader Ginsburg Just Force the Supreme Court to Approve Gay Marriage?

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.”

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  • Brutus

    pored. not poured.

  • Cam

    Fingers crossed on this one!

  • olterigo

    Jack: We need to take this all the way to the Supreme Court. We have friends there. You know, we’ll talk to that gay justice. You know, that little fellow we like with the lasses.

    Will: Jack, we’ve been over this. Ruth Bader Ginsberg is a woman.

    (Will & Grace, Episode 2×14, “Acting Out”)

  • PopSnap

    Ms. Ginsburg seems to be The Best Justice

  • Andrew

    All relevant scientific research has indeed pointed out that being Gay is immutable, — however what I want to ask is, does it matter? The religious bigots certainly love their protections over something that I don’t think anyone would claim is not a choice, — religion, and yet that’s one of the most protected statuses to the point of it being required to hold public office in many U.S. states.

    Struck down by SCOTUS in 1961 but still present in their constitutions, if not enforceable.

  • Jeffree

    I hope our resident legal experts will chime in, but this seems like good news.

    Ruth B Ginsburg, I heard from a former Supreme Court clerk [a friend who happens to be Republican] is exceptionally thorough and thoughtful, & also supposedly very funny when she’s outside of Court.

    Kudos to JD for a very good article, and thanks to Olterigo on the humor stuff from Will & Grace.

  • Ronbo


    Yes, it does matter. That it, our sexuality, is a fact is undeniable. I should also ask if Blue is a color. Yes, but does IT matter, Andrew?

    We are lucky that the world is turning our way – the way of freedom and equality. But, it has taken years and years of compiled facts to make it that way. It has taken millenimum for us to understand that facts DO matter. Acknowledging/accepting your sexuality mattered. Comming out mattered. Exposing our reality mattered. Addressing our health issuse mattered. Getting “status” matters.

    I’ve been married morally, spiritually and physically for 25 years and I can tell you that legality matters. No, I don’t need a piece of paper to know I’m married. But, in the hospital, I NEED that piece of paper. I need that piece of legal fodder to protect myself and my loved ones – for over 1,000 reasons.

    Please don’t take it lightly, we NEED that piece of paper.

  • Marty

    Finally! A justice giving some thought toward the future!

  • Andrew

    @Ronbo: I’m pretty sure you misunderstood what I said. My point was, whether or not sexuality is a choice or biological, — all relevant scientific and physiological information saying it is indeed mostly biological, means nothing, if SCOTUS and the right wing is going to insist religion be a ground for protected status.

  • scotts404


    Religion is specificly protected by the Constitution.

  • Forget the Umbrella-It's Raining Men!

    Even the so-called “free exercise of religion” has its limits. For instance, you can’t sacrifice a black cat on an altar in the name of your “free exercise of religion” or do other illegal things.

    But, there is no “homosexual exemption” in the US Constitution. There were exemptions for women and black people, but never an exemption for homosexuals. Even if it is erroneously concluded that homosexuality is solely behaviour and not a social status, that still wouldn’t preclude homosexuals from the equal protection clause of the 14th Amendment.

    After all, golfers aren’t mentioned by name in the “equal justice under the law” provisions of the 14th Amendment, and because they are not mentioned by name, behaviour, or social status that doesn’t carve out an exemption for golfers for equal treatment under the law. And that’s true even if the majority of people are not golfers and actually hate it when its being televised and interrupting Sixty-Minutes and my other TV programs on Sundays.

    Bottom line, History will someday look back at this tempest in a teapot and shake its head at the stupidity of the whole situation.

    …It always does.

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