Gay Marriage - Looking for Time Bombs and Tea Leaves

There are always some among the Supreme Court watcher set who look for any and all clues as to secret agendas of the Court or individual justices. They do just about everything short of sacrificing animals and then reading the entrails. As an attorney with a special concern for gay rights issues, I admit that I typically read significant U.S. Supreme Court opinions as well as significant state supreme Court opinions (e.g., the Iowa ruling striking down bans on gay marriage in that state). Now some are reading signs into the recent Hastings Law School opinion that upheld the law school's right to withhold full recognition - and more importantly student activity fund monies - from a Christian legal society that excluded gays. Frankly, I hope that the conjectures are accurate. It is long past time that the Court accept that sexual orientation is not a matter of "conduct" but rather an immutable attribute that cannot be altered. Here are highlights from the New York Times in respect to this effort to "read the tea leaves" based on a one sentence provision:
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The sentence was resolutely bland and nicely hidden in a long Supreme Court decision issued on the last day of the term.
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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.
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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.
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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.
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“The Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class,” Theodore J. Boutrous Jr. wrote the next day to Chief Judge Vaughn R. Walker of the Federal District Court in San Francisco.
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[I]f the plaintiffs’ reading is correct, Justice Ginsburg’s statement is both a time bomb and a tea leaf that will figure in litigations concerning same-sex marriage on two coasts. Judge Joseph L. Tauro of the Federal District Court in Boston issued two rulings on July 8 striking down part of the federal Defense of Marriage Act of 1996, and Judge Walker is expected to rule soon in the California case.
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The decision in which the statement appeared, Christian Legal Society v. Martinez, considered whether a public law school could deny recognition to a student group that excluded gay men and lesbians. The majority decided the case on narrow grounds that barely acknowledged the clash between anti-discrimination principles and religious freedom.
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Barely, but not entirely. In her brisk aside, Justice Ginsburg put the muscle of a majority decision behind a proposition that had attracted only one vote when the court struck down a Texas law making gay sex a crime in 2003 in Lawrence v. Texas.
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“Texas’s sodomy law is targeted at more than conduct,” Justice Sandra Day O’Connor wrote in a concurrence. “It is instead directed toward gay persons as a class.”
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Obviously, it is impossible to know for certain what the Court may do in future cases, but taken piece by piece, Martinez, Lawrence and Romer v. Evans have built a series of stepping stones
that lead to an ultimate ruling supporting gay marriage and striking down ant-gay state constitutional amendments and DOMA as well.