Justice Ruth Bader Ginsburg, writing for the majority, said it was constitutionally permissible for public institutions of higher education to require recognized student groups to accept all students who wished to participate in them.So what does this have to do with the right of same sex couples to marry, and what does this have to do with the challenge to Proposition 8? The lawyers challenging Prop 8 argue that the Court held gays and lesbians not just merely a behavioral but an identity class. They explained in a letter to US District Judge Vaughn Walker,
In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class. Writing for the Court, Justice Ginsburg explained: “Our decisions have declined to distinguish between status and conduct in this context.” [bold emphasis mine]Thus far, anti-gay groups have gone around hiding their prejudices in the thin veil of "conduct" or "behavior" to try to avoid taking responsibility for their phobia for a group of people. It isn't the person they object to, they say, it is the sexual behavior (oh give me a freaking break, will you?). That is in fact exactly what the Christian Legal Society tried to argue.
The Court’s holding arose in response to Christian Legal Society’s argument that it was not discriminating on the basis of sexual orientation, but rather because gay and lesbian individuals refused to acknowledge that their conduct was morally wrong. The Court rejected that argument, holding that there is no distinction between gay and lesbian individuals and their conduct.Ginsberg, speaking for the US Supreme Court, has now shattered that pretend-distinction and in this context, equated discrimination based on [sexual] conduct with status and identity. The lawyers fighting for us further explain that the Court has now further affirmed what Justice O'Conner said in obliterating the right wing's arguments in her concurring opinion in Lawrence v. Texas in 2003 when the Court struck down anti-sodomy laws.
This confirms that a majority of the Court now adheres to Justice O’Connor’s view in Lawrence, where she concluded that “the conduct targeted by [the Texas anti-sodomy] law is conduct that is closely correlated with being homosexual” and that, “[u]nder such circumstances, [the] law is targeted at more than conduct” and “is instead directed toward gay persons as a class,”By establishing gay Americans as an identifiable class, opponents of Prop 8 will argue, we can no longer be denied rights based on some "conduct" argument, and we can no longer be arbitrarily denied rights enjoyed by all other Americans. We cannot be denied access to equal status and equal protection of the laws based on some behavioral construct. That loses the opposition their justification for their homophobia. If the cause for institutional discrimination is not people belonging to a class that you want to discriminate against, and behavior can no longer be used as a legal justification to deny us rights, then pray tell, what is the legal grounds for denying a whole class of people equal justice under law? On what grounds, precisely, are we denied the right to marry the one we love?
I'm not a lawyer, and I don't know what will happen in the Prop 8 case. If it goes to the Supreme Court, I'm not exactly holding my breath, but I do think these legal precedences need to be made. The recent ruling may well have positive implications for equality for gay Americans, and that much we can all celebrate.