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?
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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