Looking for time bombs and tea leaves on the freedom to marry
July 20, 2010
Posted by Adam Liptak on nytimes.com:
"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.
... "Some scholars cautioned against reading too much into very limited information culled from an inapposite decision.
“'I don’t think it tips the court’s hand,' Michael C. Dorf, a law professor at Cornell, said of the Christian Legal Society decision. Professor Dorf filed a brief supporting the law school in the case.
"William N. Eskridge Jr., a law professor at Yale, said, 'The takeaway is that in the foreseeable future if you’re going to get five votes for anything remotely pro-gay it will have to be written very narrowly.'
"Others were prepared to go a little further.
“'The tone bodes well,' Professor Goldberg said of the decision. 'The analysis bodes well. The great question is whether the tone and analysis will carry over when the court confronts marriage head-on.'”
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