Wednesday, July 21, 2010

Legal Tea Leaves

Thanks to Ed Bacon for the tip on this NYT feature I missed yesterday. You'll want to read all of Looking for Time Bombs and Tea Leaves on Gay Marriage but here are a few snippets to get you started:
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.

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.

Lawyers for couples challenging California’s ban on same-sex marriage wasted no time in offering the judge hearing their case a translation of Justice Ginsburg’s sentence.

“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.
Of course there's quibbling about what Justice Ginsburg said actually means ... but as we wait for the Prop 8 decision it certainly gives some intersting food for thought -- and tea leaves for contemplation!

1 comment:

john said...

I think Judge Walker will rule in our favor on equal protection grounds relying on an analysis much like Judge Tauro's in that equal protection case.