Did Justice Ginsberg Set the Supreme Court Up to Allow Marriage Equality?

Jim Burroway

July 20th, 2010

That’s the intriguing possibility that The New York Times’ Adam Liptak raised today. It all hinges on the opinion she wrote for Christian Legal Society v. Martinez, in which the Supreme Court ruled that the University of California’s Hastings College of the Law was constitutionally permitted to deny funding to the Christian Legal Society because the group’s policies violated the schools anti-discrimination policies. Actually, Liptak’s optimism hinges not on the entire opinion, but on one single sentence in that opinion:

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

Liptak thinks he sees a technique used by former Justice William J. Brennan, Jr.:

“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.

That’s very significant. Previous court decisions talked about gay people as a collection of behaviors and little more. This case marked a small but important change. But the stakes are much bigger when it comes to marriage equality, and that’s a lot of weight for a single sentence to carry going forward. Let’s hope it doesn’t buckle.

Update: BTB’s Timothy Kincaid noted this very same thing in his analysis of the Christian Legal Society v. Martinez. You can blame my short attention span for the omission.


July 20th, 2010

Olson and Boies picked up on this point almost immediately. I will also chalk it up to John Paul Stevens, who, as the most senior member in the majority of the Hastings case, had the power to decide who would write the majority opinion. In my own interpretation of history, his assigning Ginsburg the writing of the majority opinion is part of his legacy, and will also influence the ultimate decision in the prop 8 case, for which he will not be on the bench.


July 20th, 2010

Anthony Kennedy ruled with the majority in saying that there should be no cameras in the Prop 8 trial because homosexuals would likely cause “irreparable harm” to those testifying for the defense. That is not the words of a man who’s going to vote for marriage equality, period. I don’t understand why people keep ignoring that.


July 20th, 2010

Ryan, Kennedy has a long history of vigorously opposing cameras in the Supreme Court. So where you and I see that decision as interesting because it deals with gays, I think Kennedy saw it as interesting because it deals with cameras in courts.

See here for an example of his opposition to court cameras back in 2007 — long before this case or even Prop 8 was a twinkle in anyone’s eye.

Timothy Kincaid

July 20th, 2010

Interesting. We noted much the same thing in Point 4 of our analysis on the day the decision was released.


July 20th, 2010

The exact phrasing of the item can cut both ways, though.

They didn’t say that in all cases it is unacceptable to make a distinction between status and conduct with regards homosexuals. She specifically went out of her way to say that in the particular context of that case they didn’t make a distinction.

Sounds to me as though they are implicitly reserving the right to make exactly that distinction in other contexts. That isn’t quite the positive that other people seem to be seeing.

The case was about whether a Christian group was allowed to ignore the school’s stated nondiscrimination policy regarding club membership in school-recognized clubs. As far as I know, they didn’t address what the similar situation would be in a school without such a policy, or where the school explicitly excluded gays. In other words, this could be a precedent if there was a federally mandated right to gay marriage, but some state was refusing to honor it, but it seems pretty quiet on how it fits if the governing authority is the one doing the discriminating.

Carmine A. Pasquale

July 21st, 2010

the week this decision was announced, justice ginsberg’s phrasing/word-choice [status] was, in fact, addressed on the npr diane rehm, friday news roundup as well as pbs news hour analysis and pbs, washington week in review! it is a BIG deal for such a little word ;)


July 21st, 2010

“See here for an example of his opposition to court cameras back in 2007 — long before this case or even Prop 8 was a twinkle in anyone’s eye.”

Then why not confine the argument to cameras? The argument against Olsen and Bosies could’ve been made without stating that homosexuals would likely cause irreparable harm. If we’re gonna parse what Ginsburg said, it seems reasonable to also parse this.

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