[Our second commenter scores a significant point of caution.]
The Supreme Court ruled Monday that a public law school can deny recognition to a student group that excludes gays and lesbians, in this case the Christian Legal Society. The Court said the University of California's Hastings College of Law could enforce a policy requiring official student organizations to accept all students who want to join.
(See news report by Pew Research Center.)
Lawyers for the plaintiffs in Perry v. Schwarzenegger have written to the judge:
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.” Slip op. at 23 (citing Lawrence v. Texas, 539 U.S. 558, 575 (2003); id. at 583 (O’Connor, J., concurring in judgment); Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993)). 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,” id. at 583 (O’Connor, J., concurring in judgment) (emphasis added). See also Romer v. Evans, 517 U.S. 620 (1996) (treating gay and lesbian individuals as a class for equal protection purposes). 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.H/T Box Turtle Bulletin.
In his closing argument, counsel for Proponents claimed that High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990), and its dubious statement that “homosexuality is not an immutable characteristic; it is behavioral,” id. at 573, forecloses heightened scrutiny in this case. But as this Court explicitly recognized at the hearing on Proponents’ motion for summary judgment, High Tech Gays, which relied on the now-overruled Bowers v. Hardwick, 478 U.S. 186 (1986), rested on a moth-eaten foundation.
The Recorder reported the story this way:
The Christian Legal Society tried to justify excluding gays and lesbians by arguing that its membership policy wasn't aimed at homosexuals because of their conduct, but because of their belief that homosexuality isn't immoral.
"Our decisions have declined to distinguish between status and conduct in this context," wrote Justice Ruth Bader Ginsburg, who cited Justice Sandra Day O'Connor's concurrence striking down a sodomy statute in Lawrence v. Texas.
Justice Anthony Kennedy joined Ginsburg's opinion. He's the crucial fifth vote that same-sex marriage plaintiffs are counting on, should the federal challenge to Prop 8 make it to Washington, D.C.
To the plaintiffs, Ginsburg's language solidifies their argument that gays deserve enhanced constitutional protection.