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Equal Protection Law and the Upcoming Proposition 8 Case

First, gideonalper posted a basic overview of the upcoming Proposition 8 case today, and if you're not familiar with the case at all, you’ll want to (at least) read that piece first.

I’d like to elaborate on one part of this, and talk about why this case is a lot bigger than same-sex marriage.I’ll start by quoting that introductory diary:

In general, the Constitution says that states can’t make discriminatory laws unless there’s a good enough reason.

That’s right, that is essentially the 14th amendment, that is essentially this legal idea we call “Equal Protection.”  If you have a law, and it treats two groups differently, it’s a problem unless there’s a “good enough” reason.

What’s “good enough?”

Legally the answer is, “it depends.”  For the vast majority of laws that get made, the courts use a test called “rational basis.”  One could argue that a law against (say) murder discriminates between murderers and non-murderes (and in a purely technical sense, it does), but obviously, there is a very rational basis for laws against murder.  In general, courts give legislatures a fair bit of latitude to make laws without every law being an equal protection court fight, only in a few types of situations does the court require more than, essentially, a plausible sounding story.

In a few cases, though, the court applies a higher level of scrutiny (cynicism) about whether a law has a “good enough” reason.  If a law seems to target people because of their race, for example, it’s subject to “strict scrutiny”, which requires a law to be both have a “compelling state interest” in making the law, and also make sure the law is “narrowly tailored”. If a law that appears to discriminate on race is said to “protect children”, the proposed law will be found unconsitutional unless there’s not only a good reason for the law, but also only if the law is the least discriminatory, least intrusive way of accomplishing that.

So far, laws that discirminate on sexual orientation do not get this higher level of scrutiny (at a federal level.)  So far, laws that discriminate us only legally require a plausible-sounding reason.

Could that change?  Yes, it very well could change, and this case has a chance of doing just that.  The courts are slow to adopt new groups as deserving of strict scrutiny (or an intermediate level called intermediate scrutiny), but that can change. Over the decades the courts have laid out the primary factors that go into a decision about whether a group deserves this extra scrutiny.

The factors involved are, more or less: a group will be considered for higher scruitny if it is a group that has faced a long history of discrimination and prejudice, a group that does not enjoy enough political power to achieve their ends directly through the ballot box, and if the group is immutable, that is, something that can’t be (or can’t easily be) changed, like race or even religion.  

I personally believe that sexual orientation meets all these criteria.  I think that both poltiical powerlessness and discrimination are not only shown in our history overall, but in the particular history of Proposition 8. And I believe that science is clear enough that “even if it could be changed (and it can’t easily be for most of us), it can’t easily be changed, not without harm.

While we may win same-sex marriage rights in California (or even more broadly) through this case, a finding that sexual oreintation is a protected class, that is, that it is deserving of “strict scrutiny” or “intermediate scrutiny”, would be a large, lasting benefit in legal fights involving orientation, not only for marriage, but laws involving adoption, perhaps (although this is a stretch) the military, perhaps immigration.  This case cuts at the very heart of what a “good enough” reason to discriminate against people based on orientation is.

I acknowledge and share some the fear of folks who worry that this case is “too soon to win” at the Supreme Court when it gets there (probably years from now.)  But I also believe (and I hope I’ve explained why) this case has an enormous potential for us. I will work to remain hopeful.

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Joe Decker

Joe Decker