Post by Randall Ryder
Legal scholars are claiming that one sentence from a recent Supreme Court decision is "tea leaf" that can be interpreted as the Supreme Court’s opinion of gay marriage rights. The phrase appeared in the recent case of Christian Legal Society vs. Martinez. In that case, the court decided whether a public law school could deny official school recognition to a student ground that excluded homosexual members based on religious grounds. The Court decided that the school did not have to give official recognition to the group, and failing to do so does not violate the Constitution.
In the majority opinion, written by Justice Ginsburg, she says that "Our decisions have declined to distinguish between status and conduct in this context.” The context, however, was a discussion about how laws affect homosexual individuals. In theory, this could mean that the Court is beginning to feel that sexual orientation is not a choice, it is an "immutable" characteristic. The significance is that the Supreme Court and other courts tend to protect the rights of groups with immutable characteristics—age, sex, gender, race, etc.
According to one legal professor, Ginsburg’s sentence means that “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 . . . ”
Other scholars argue that the comment means nothing, and does not demonstrate the Court’s view on gay marriage. So, what does the sentence mean? Perhaps only Justice Ginsburg knows.
Given the recent federal cases involving gay marriage, however, it seems likely the sentence is at least a hint of future rulings. In Boston, a judge struck down a federal ban on gay marriage as unconstitutional. In California, the trial over Proposition 8, a ban on same-sex marriage, has finished, but a ruling has not been issued. Majority opinions written from the Supreme Court are not drafted in an evening. Precedent is carefully examined, words are carefully chosen, and every opinion likely goes through a number of rewrites. Truly, every sentence matters.
Taken out of the content of the opinion, the sentence is seemingly meaningless. But read in context of the facts of the case, and the fact that the Court will likely have to confront the gay marriage issue in the near future, it seems logical that the sentence could truly be a tea leaf. Seemingly "random" statements by the Court have been known to be predictors for future decisions. Until the Court confronts the issue, however, and a justice interprets that sentence, what it means is unclear.
Looking for Time Bombs and Tea Leaves on Gay Marriage | The New York Times