Things that lurk

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.

Slipping that thought into a case about the treatment of a Christian student group reminded some of a technique perfected by Justice William J. Brennan Jr., whose fellow justices were wary of his “time bombs.”

“Brennan’s colleagues learned to watch for the seemingly innocuous casual statement or footnote — seeds that would be exploited to their logical extreme in a later case,” Seth Stern and Stephen Wermiel wrote in a new biography of the justice to be published in October.

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.

There was something broader going on, too, said Suzanne B. Goldberg, a law professor at Columbia.

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