Justice Ginsburg’s SSM Time Bomb Triggered In SG Prop 8 Brief

February 28th, 2013

On July 19, 2010, Adam Liptak seized on a key dicta in Justice Ginsburg’s opinion in CLS v. Martinez:

The sentence was resolutely bland and nicely hidden in a long Supreme Courtdecision 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.

In a footnote in the Government’s brief in the Prop 8 case, Solicitor General Verrilli cited just that passage:

As petitioners recognize (Br. 28), although Proposition 8 does not expressly refer to “sexual orientation,” it nonetheless classifies on that basis. Proposition 8 denies recognition of a class of marriages into which, as a practical matter, only gay and lesbian people are likely to enter. See Pet. App. 239a-240a (“Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”); J.A. Exh. 56-57 (Voter Guide’s pro-Proposition 8 argument: urging voters to ban “gay marriage” and stating that “[g]ays and lesbians * * * do not have the right to redefine marriage for everyone else”). This Court has squarely rejected any distinction between the status and conduct of gay and lesbian people. See Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2990 (2010) (rejecting contention that the organization “does not exclude individuals because of sexual orienta- tion, but rather ‘on the basis of a conjunction of conduct and the belief that the conduct is not wrong’ ” because the Court’s “decisions have declined to distinguish between status and conduct in this context”); Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrim- ination.”); id. at 583 (O’Connor, J., concurring in judgment) (“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, [the] law is targeted at more than con- duct. It is instead directed toward gay persons as a class.”); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).

Kudos to Adam for finding this timebomb, which just detonated.

My friend Mike Sacks pointed out that Vaughn Walker cited it in his Prop 8 in August of 2010.

How far we have come in three years:

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.”