"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.