Gay Rights Advocates Seize on Justice Ginsburg’s ‘Time Bomb’
Gay rights advocates are buoyed by a statement in a majority opinion written by Justice Ruth Bader Ginsburg in a decision upholding a law school’s decision to refuse recognition to a Christian legal group that excluded gays and nonbelievers.
Ginsburg’s statement in the 5-4 decision Christian Legal Society v. Martinez “was resolutely bland and nicely hidden,” the New York Times reports. Some compared it the hidden “time bombs” contained in the opinions of Justice William J. Brennan Jr., whose seemingly casual statements or footnotes would be cited to extend the law in future cases.
This is what Ginsburg wrote in a portion of the opinion discussing laws that affect gays and lesbians: “Our decisions have declined to distinguish between status and conduct in this context.” The sentence is important, the Times explains, because courts are more likely to protect groups whose characteristics are immutable, rather than a choice.
Columbia Law School professor Suzanne Goldberg told the Times that the decision could affect gay rights jurisprudence. “The tone bodes well,” she said. “The analysis bodes well. The great question is whether the tone and analysis will carry over when the court confronts marriage head-on.”
Lawyers challenging California’s ban on gay marriage noted Ginsburg’s language in a court filing the next day, the story says. The lawyers asserted that the U.S. Supreme Court had “definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class.”
Opposing counsel responded that the lawyers were reading too much into the opinion. A ruling in the case is pending.
