Hmm, interesting….

July 19, 2010
 

Looking for Time Bombs and Tea Leaves on Gay Marriage



WASHINGTON

The sentence was resolutely bland and nicely hidden in a long Supreme Court decision issued on the last day of the term.

All it said was this: -Our decisions have declined to distinguish between status and conduct in this context.” But the context mattered. Justice Ruth Bader Ginsburg, writing for the majority, was talking about laws affecting gay men and lesbians.

Slipping that thought into a case about the treatment of a Christian student group reminded some of a technique perfected by Justice William J. Brennan Jr., whose fellow justices were wary of his -time bombs.”

-Brennan’s colleagues learned to watch for the seemingly innocuous casual statement or footnote — seeds that would be exploited to their logical extreme in a later case,” Seth Stern and Stephen Wermiel wrote in a new biography of the justice to be published in October.

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.

Lawyers for couples challenging California’s ban on same-sex marriage wasted no time in offering the judge hearing their case a translation of Justice Ginsburg’s sentence.

Read the rest of The New York Times story HERE.

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