Reading the Tea Leaves in a U.S. Supreme Court Decision
William C. Duncan
Adam Liptak has written an important article in the New York Times highlighting Justice Ginsburg’s argument in the Christian Legal Society suit against Hastings Law School that the Supreme Court must reject any distinction between status and conduct in gay-rights cases. It is possible to imagine how this idea could be used to bolster the notion proposed by the anti–Prop 8 lawyers that opposition to same-sex marriage is ipso facto evidence of irrational bigotry.
Part of the irony of this argument is that the majority in the CLS case propounds a theory of the (enumerated) right of religious liberty that looks a lot like a status/conduct distinction — the Christian organization is free to believe what it wants but cannot act on that belief by requiring organization members to adhere to its Christian beliefs.