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Did Justice Ginsburg Plant a 'Time Bomb' for Marriage Decision?

Did Justice Ruth Bader Ginsburg set a "time bomb" for the inevitable SCOTUS marriage decision when she wrote, in the recent decision against Hasting Law School's Christian Legal Society in which the group was forced to abide by the school's anti-discrimination policy or be denied recognition? 

Ruthbaderginsburg Wrote Ginsburg:

“Our decisions have declined to distinguish between status and conduct in this context.”

That's what Adam Liptak suggests in a NYT article. A "time bomb", Liptak explains, was a phrase often utilized by Justice William Brennan Jr. in a decision "that would be exploited to [its] logical extreme in a later case."

Liptak suggests (as do the plaintiffs in the Prop 8 case) that Ginsburg's discussion of status and conduct is important:

"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."

While some are wary of reading forward with limited information, others see it as a good sign, and consider this detail as well:

"The Christian Legal Society decision was notable, too, because it was the only one in an argued case in the last term in which Justice Anthony M. Kennedy joined the court’s four more liberal members in a 5-to-4 decision. It is inconceivable that advocates for same-sex marriage can win in the current Supreme Court without his vote."

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  1. The NYT article gives hope that the SCOTUS may decide that denying gay people the right to marry violates the U.S. Constitution. If I were to live such a day, I think I would know how those effected felt after Brown v. Board of Education. In the U.S., the courts have long recognized that Separate but Equal when it comes to a class of people is not possible. Is it too much to pray for another Supreme Court opening? Can Scalia live forever?

    Posted by: Fahd | Jul 20, 2010 8:38:21 AM

  2. It seems to me the marriage equality issue coming to the SCOTUS is multilayered. They could rule states rights and leave it to individual states to determine (the medicaid case in MA). They could also do a "Loving v. VA" decision focusing on the "full faith and credit" clause.

    There are many ways to move forward on this. Perhaps it is incremental. States rights for now and full faith later. Time will tell.

    Posted by: dc20008 | Jul 20, 2010 8:49:45 AM

  3. I think that,from a legal standpoint,the denial of marriage equality to same-sex couples should be viewed as a case of discrimiation on the basis of sex.
    Mildred Lovin never was required to prove that her attarcation to white men was immutable or that she couldn't have picked a different spouse who was black.
    The two people in a spousal relationship are who they are. Their sex and race are certainly immutable. (So is their sexual orientation, but that's beside the point). It shouldn't matter even if one or both are bisexual, or (as a parallel) capable of being attracted to someone (other than their spouse) of any OTHER race or religion.
    If the state is looking in your underwear to see what you've got before they grant a right, that is sex discrimination, plain and simple.

    Posted by: GregV | Jul 20, 2010 10:04:52 AM

  4. Sure it's a potential time bomb, but the phrasing could take it either way.

    It doesn't say, "We recognize that there can be no distinction between status and conduct with regards homosexual people."

    It says they don't make that distinction in the context of the particular case in front of them - implying that they darn well could make that distinction in a later case, thank you very much.

    In fact, it's sort of hard to imagine that this wasn't a statement that they reserve the right to do just that any time they think it is appropriate.

    Less of a time bomb and more of a loose cannon, seems to me.

    Posted by: Lymis | Jul 20, 2010 10:07:30 AM

  5. I would think status/conduct would have greater ramifications for DADT, since the military claims they are not interested in "who you are," yet discharge you for stating that you are gay. The claim that coming out is "conduct" rather than "status" is pretty weak.

    Posted by: Kevinvt | Jul 20, 2010 10:33:34 AM

  6. Although it's true that Ginsburg repeated it, this conduct/status distinction isn't attributable to her. With regards to gays and lesbians, this first came up in the DC Court of Appeals Case "Padula v. Webster", back in 1987. In that case, there was a challenge to the FBI's hiring policy against homosexual conduct. The court reasoned that if the Court in Bowers v. Hardwick upheld a state's right to make homosexual conduct illegal, than why would it be willing to view discrimination against gays and lesbians as a class as "invidious" discrimination. The court wrote: "If the Court was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal."

    This sentence was cited by Justice Scalia in his dissent in Romer v. Evans, in which he would have allowed the State of Colorado to pass a constitutional amendment forbidding gays and lesbians to enact non-discrimination laws.

    It was then in 2003 in Lawrence v. Texas where Justice O'Connor, in her concurrence wrote: "Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. 'After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.' Citing both Scalia's romer dissent and Padula.

    So it wasn't Ginsburg at all the made the observation. In fact, the original observation was made in the service of denying protections to homosexual as a class based on the fact that their conduct was criminal. It wasn't until O'Connor took that comment and used it as an aid to gays and lesbians. Lower courts have been toying with that little bit of dicta ever since. In fact, the conduct/status argument was used in the lower court opinion in the CLS case (of course, citing to O'Connor's Lawrence concurrence). Ginsburg was simply repeating, what, by now, has become common parlance when it comes to justifying discrimination against gay people.

    Posted by: Anthony | Jul 20, 2010 11:29:58 AM

  7. The problem for them is largely political, as 42 states have ruled strongly against gay marriage, which would make reversing them very untenable, even for the SC. If it was trending the other way, as during Loving v. Virginia then a SC ruling in our favor would be more probably. Justice Kennedy has not tipped his hand yet.

    Posted by: anon | Jul 20, 2010 12:13:47 PM

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