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“Home Court Advantage” – Can Gays Be a Suspect Class?

Background Trial analysis

By Paul Hogarth

So much of the law hinges on which side has the burden of proof.  The team with “home court advantage” doesn’t have to prove anything — and right now, unfortunately, it’s the Prop 8 side.  Because federal courts haven’t recognized gays as a “suspect class,” our side’s task is to affirmatively prove there was no rational basis for Prop 8 — that all their “reasons” are just bigotry by another name.  Any reason the opposition cites that is not “irrational” can disprove our case.  Moreover, the Court can even dream up a rational basis – like they did in New York (“straights might accidentally have kids, so there’s more of a reason to let them marry.”)

But if somehow this case leads to gays being a “suspect class,” the tables are turned.  The Prop 8 side would then have to prove there was a compelling public interest — narrowly tailored through the least restrictive means.  If we then poke holes in the interest cited, we win.  I’ve written a lot about this in the past week — but haven’t explored in depth: how do we make gays a suspect class, and what are the odds that a federal court would take the leap that it hasn’t yet done that would legitimize sexual orientation?

To date, only three State Supreme Courts have recognized gays as a “suspect class” — California, Iowa and Connecticut — and not co-incidentally, they all ruled in favor of gay marriage.  Massachusetts also ruled for gay marriage, but what’s interesting about that case is they never said gays are a “suspect class.”  The Court said we don’t even need to go there — because there is no possible rational basis to deny gays to marry.  Of course, all these cases were about an individual state’s constitution — not the federal.

Colorado’s Supreme Court — in Evans v. Romer (1994) — said gays are a suspect class under the federal Constitution, and repealed Colorado’s Amendment 2.  The decision to throw out Amendment 2 was affirmed in Romer v. Evans (1996), but the U.S. Supreme Court said they were doing so “on a rationale different from that adopted by the State Supreme Court.”  Justice Kennedy went on to argue Amendment 2 doesn’t even pass the lenient rational basis test.  That could mean one of two things: either he meant gays are not a suspect class, or like Massachusetts he was saying “we don’t even have to go there.”  A footnote in Romer does explicitly say that the Court “evidently agrees” gays are not a suspect class, but that was part of Scalia’s dissent – so it is not binding precedent.

In other words, the feds have not found gays to be a “suspect class” — but arguably they never really said the opposite.  What would have to be proven that gays are a suspect class?  As I mentioned on Thursday, the U.S. Supreme Court has a four-part analysis:

(1) Are gays a “discrete and insular” (i.e., identifiable) minority?  Nobody’s really arguing this point.

(2) Do gays have a history of discrimination?  Again, we find this truth to be self-evident.

(3) Are gays politically powerless so as to be in need of assistance?  That’s why the Prop 8 side — when they cross-examined Yale historian George Chauncey — kept pointing out how gays have become more politically powerful in recent years, that Nancy Pelosi is a “strong ally” and that “Brokeback Mountain” and “Will & Grace” are popular.  On the marriage issue, however, a counterpoint — which I wish our side had made – is that 31 states have passed anti-gay amendments, along with DOMA on the federal level.  At least on the issue of marriage (which the federal courts have found to be a “fundamental right”), gays are politically vulnerable.

(4) Is being gay an immutable trait?  “Immutable” means the identifiable trait cannot be changed – like race.  One thing I found interesting about Dr. Tam’s video testimony was when he was asked about civil rights: “I believe civil rights to be about skin color — something you can’t change [my emphasis]. Homophobia is truly on trial here, because the question is whether the Court believes that gays are just “born that way” or they can “be converted.”  Alternately, however, the courts have recognized religion to be a “suspect class” – even though people can change their religion.  But then the question is whether it’s a trait so key to a person’s identity that it would be wrong to make them change.  Not if gays could change — but whether gays should change.

Nobody really expects this Supreme Court to go so far as to call gays a “suspect class.”  But the fact no court (as far as I can tell) has found them not to be a “suspect class” keeps me hopeful.  And with the testimony our side has brought in — from the history of discrimination to the plaintiffs’ very personal stories — there is plenty of ammunition in this case to argue that point on appeal.


  • 1. Aaron  |  January 16, 2010 at 10:10 am

    Paul, thanks for the great work. i have a questions….can the plaintiffs COMPEL the DI witnesses who backed out to testify? with a subpoena? i know they were DI witnesses, but can’t the plaintiffs call them to testify anyway????

  • 2. Stephen  |  January 16, 2010 at 10:21 am

    Doesn't the federal hate crimes law recognize gays and lesbians as a class that needs protection?

  • 3. Marlene Bomer  |  January 16, 2010 at 10:26 am

    Um, this means that religion *itself* should be removed as a suspect class, going by what the bigots claim.

    It's not immutable, and they are not politically powerless, as we've seen with the Mormons and Catholic royalty flexing their political muscle.

  • 4. michael  |  January 16, 2010 at 10:50 am


  • 5. Elizabeth Coffey  |  January 16, 2010 at 11:55 pm

    Not all religions are immutable, as with Mormons and Catholics in this country. However, Islam, Hinduism, Buddhism, and other non-Christian religions still fall under that definition. How much of an uproar was/is there over Obama "being Muslim."

    The question is whether or not they should or could remove *certain* religions from being suspect classes.

  • 6. Elizabeth Coffey  |  January 16, 2010 at 11:56 pm

    I meant "not all religions are politically powerful." Oops.

  • 7. Buddha Buck  |  January 16, 2010 at 10:53 am

    I would treat religion as a "special case" when it comes to being a "suspect class", because there is an incredibly long, visible, politically important history of religiously motivated political persecution and violence.

  • 8. michael  |  January 16, 2010 at 11:30 am

    Yes, the history of persecution and violence that we share with them is somehow conveniently overlooked.

  • 9. michael  |  January 16, 2010 at 11:32 am

    probably because they are the ones doing the persecution and responsible for all the violence.

  • 10. Buddha Buck  |  January 16, 2010 at 1:12 pm

    When did homosexuality ever cause such political turmoil and violence as to lead to something the equivalent to the beheading of a King?

    When the US Constitution was written, the history of the Civil War was well-known to all involved, the specific histories of the Colonies were well known to all involved, and the impact and effect of religious differences were important in their minds. The "No Religious Test" clause was included specifically because of the centuries of inter-religious strife and bloodshed in then-recent English history.

  • 11. michael  |  January 16, 2010 at 5:44 pm

    They only remember the history that fits into their plans or works to achieve their goals of complete domination.

  • 12. Buddha Buck  |  January 16, 2010 at 11:00 am

    If you are correct, in that the SCOTUS has not declared that homosexuality is not a "suspect class", is it possible that the trial court (Judge Walker) could find that it is a suspect class, and the 9th Circuit upholds?

    It does appear that the plaintiffs are trying hard to lay the groundwork of evidence to support the four prongs above, as well as attempting to undermine the "rational basis" test.

  • 13. Marco Luxe  |  January 17, 2010 at 8:36 am

    Yes, that's the basis of the entire case. First, ask for strict scrutiny as a suspect class with 4 prongs; then argue if some of the 4 prongs are weak that some "intermediate scrutiny" is proper, i.e. that the government should still need to prove that there is a very good reason for the law. Then, in case you don't convince the judge on this heightened scrutiny, you try to show there is no rational basis for the law, i.e. "just because we voted" or, "to protect from an invation from Mars" are not rational reasons. MA and ROMER concluded all rationales for anti gay laws is just irrational historical trash, i.e. "animus" = learned bigotry. Olsen's week 1 witnesses tried to show the history of animus.

  • 14. kenballer  |  January 18, 2010 at 2:31 pm

    TRUE, but the 9th circuit has considered the question and have declined
    to treat homosexuals as a suspect class in this case:

    Citizens For Equal Protection v Bruning

  • 15. Joetx  |  January 21, 2010 at 6:53 am

    That case was an EIGHTH Circuit case, not 9th.

  • 16. Kyle  |  January 16, 2010 at 11:53 am

    Who declares a group a "suspect class"? And under what circumstances would they be compelled to do it?

  • 17. literalman  |  January 16, 2010 at 11:57 am

    I still have a nagging worry that the entire approach Boies and Olsen are taking is wrong. If gays and lesbians are the suspect class who are precluded from marriage, then nothing in their argument would preclude a law that allowed gays and lesbians to marry same-sex, but required bisexuals to marry opposite-sex only.

    Here's what I think is a better argument against Prop 8:

    Imagine the following "Prop 8a": "Only marriage two people, both born on the same day and year, is valid or recognized in California." This impacts everyone equally (everyone can only marry people *exactly* as old as them) and without respect to any protected class, but it does mean that everyone's right to marry is utterly decimated (since the chance of finding someone you'd want to marry who happened to be exactly the same age as you is slight). Should it be held unconstitutional, and if so, why?

    My answer is: it is unconstitutional — not because of the Equal Protection arguments — but because of the due-process and liberty rights explained in Lawrence v. Texas. But how can someone who supports Prop 8 answer my Prop 8a scenario? They can either accept the right of the state to essentially outlaw marriage altogether, or they can rely on Liberty and Privacy considerations — but in the latter case, I don't know how they can stop their arguments from also including allowing same-sex marriages.

  • 18. cabby  |  January 16, 2010 at 12:08 pm

    We may have become more politically powerful in recent years, but that comes after years of hiding from public view and a handful of horrible cases spotlighted in order to grant us legal protections from physical harm. The popularity of "Will & Grace" and "Brokeback Mountain" seems to me to be more of a rise in social power, not political power. Will Truman is not protecting us from discrimination or harm nor allowing us our Constitutionally guaranteed rights, he is making some people laugh on Thursday nights. This is a big difference. We may have become more politically powerful in recent years, but if you compare a couple of hate crime laws passing to noone attempting to pass anything at all, you'll obviously come up with a a seemingly more powerful group.

  • 19. bill  |  January 16, 2010 at 1:09 pm

    Well look at this way: If you take all the gay men and place them on a secluded island, all the gay women and place them on a separate secluded island, and of course the "straights" are mixed… which group will populate and thrive and who would eventually die out? Food for thought.

  • 20. blue27  |  January 16, 2010 at 1:25 pm

    13. bill: Congratulations. You win tonight's Stupid Hater Award!

  • 21. Jan  |  January 16, 2010 at 1:43 pm

    Technically, Bill, none would. All three would continue existence.

    Homosexuals would not exist if it were not for Heterosexuals conceiving them. Thus, in your scenario, the heterosexuals would constantly be sending the homosexuals they have conceived to the Homosexual Islands, thus an endless replenishment of living homosexuals. 🙂

    We're here, we're queer, and ya can't get rid of us unless you rid the entire human populace!

  • 22. michael  |  January 16, 2010 at 5:47 pm

    You would think that they would figure that out after all these years. I think we give them to much credit in thinking logically or independently.

  • 23. GAYGUY  |  January 17, 2010 at 2:38 am


  • 24. GAYGUY  |  January 17, 2010 at 2:39 am

    TOUCHE'…. was meant for this comment…sorry!!!

  • 25. GAYGUY  |  January 17, 2010 at 2:40 am

    OK….more specifically…JAN's comment!!

  • 26. David  |  January 27, 2010 at 1:48 pm

    Actually none of the groups would survive, since they are islands with limited food sources, etc.

  • 27. Buffy  |  January 16, 2010 at 7:56 pm

    Guess what, Bill. If you placed all the straight men on one secluded island and all the straight women on another secluded island, how much of that procreation do you think would occur?

    Procreation does not require a heterosexual orientation. Gay people are not sterile.

  • 28. Aaron  |  January 16, 2010 at 1:32 pm

    does anyone know if the plaintiffs can compel the witness for the defense who dropped out to testify? can they be subpoenaed?

  • 29. michael  |  January 16, 2010 at 5:48 pm

    answered you on another thread my friend.

  • 30. Dalton  |  January 16, 2010 at 1:44 pm

    My question is if this is overturned by Walker, does this mean we can get married again in CA, until the appeals court rules later on?

  • 31. David Kimble  |  January 16, 2010 at 2:30 pm

    The Prop 8 side could get a stay at the SCOTUS level – it all depends on the findings that are issued by this court.

  • 32. Alan E.  |  January 17, 2010 at 1:01 am

    More likely it will be stayed because there will surely be an appeal no matter which side wins this particular battle.

  • 33. Marco Luxe  |  January 17, 2010 at 8:44 am

    I know they'll be a stay at the trial court level if PropH8 loses, awaiting a circuit court appeal. But what if PropH8 also loses on appeal [panel, then en banc] what will the law be in the 9th circuit? Would marriage equaltiy be the law in the western states? Would it be stayed pending cert by SCOTUS? If cert is denied [b/c there are no cirucuit court splits [or for any reason ] then at the end of the Supreme Court session, would marriage equality spring up in the 9th circuit?

    I predict that once marriage equality exists throughout the 9th circuit, there'll be no take-backsies by SCOTUS.

  • 34. Paul P.  |  January 16, 2010 at 2:12 pm

    I would think that having your rights voted away would be a convincing demonstration of being strongly politically disadvantaged, if not precisely "powerless".

    In other words, the very passing of Prop 8 should be sufficient to prove #3.

  • 35. Joe Decker  |  January 16, 2010 at 2:39 pm

    Great explanation–but one quibble. When you say "Nobody really expects this Supreme Court to go so far as to call gays a “suspect class.”", well, I'm not 100% sure that you're right. I think perhaps Olsen and Boise believe they might–*even if* they turn around and uphold 8.

    To uphold 8 (unless they simply don't take the case at SCOTUS level at all) they'll *have* to actually look at actual trial evidence arguing towards making orientation a protected class–stronger evidence than has been presented before. (If instead they upheld 8, they could uphold it on a rational basis level and not decide if a higher level of scrutiny was required, I don't expect that at all.)

    I think "intermediate scrutiny" is not out of the question, and may in fact be a goal fo this particular lawsuit.

  • 36. Kevin  |  January 18, 2010 at 9:55 am

    I actually completely agree with this statement. The possibility and probability of a suspect class decision is remarkably striking. The courts are going to be looking very closely at the IA, CT, CA decisions as well as at Romer and the record developed by Walker here. I think that they will be loathe to try to erect a legal scaffolding around the suspect class that omits gays and lesbians because they so obviously fit the paradigm. In the absence of such a decision though, it is not necessarily true, as Paul claims, that a rational basis can be comprised of any rationale whatsoever. For example, the justices in Romer applied a markedly higher level of scrutiny than would normally be afforded without going so far as to include sexual orientation within suspect classification.

  • 37. Daniel Loftus  |  January 16, 2010 at 2:48 pm

    Arguments by the plaintiff against the DI in support of immutability will need to show in cross examination that the claims put forth by the usual ex-gay chorus of experts ( are baseless.

  • 38. Mike L  |  January 16, 2010 at 3:47 pm

    I really hope things go our way, it's just so depressing having to argue that yes we are the ones being discriminated against when it's so obvious. I really never thought I could get married, when I was a teenager I just imagined myself living in france (yes) looking our the window to a wonderful view of the eiffel tower and unhappily alone. Even though when I was a little kid like 7 back in 92 a neighbour and I (back in Mex) would build a house made of anything and play as though we were married and his younger brother was our son (LOL) and I didnt need any outside influence to do that (in fact he was my first kiss it was sweet).

    WE have to fight not just for ourselves but for those young lgbt's who are here and those to come b/c many truely dont have enough support at home (especially transteens). I really hope things go well, and that Justice Sotomayor finally comes out of the closet (giggles) it would be cool.

    Thankyou so much for this site, you guys are awesome!

  • 39. twilley  |  January 16, 2010 at 7:25 pm

    Not totally on topic, but I just wanted to say a HUGE, MASSIVE THANK YOU!!! to the Prop 8 Trial Tracker team for the work you do. My partner and I are overseas right now, for the next six months, and we are absolutely GLUED to the computer, since we can't be with our countrymen. And we love all you commenters for providing us laughs and tears and building a community here online. Thanks everybody!!

  • 40. Beth  |  January 16, 2010 at 8:54 pm

    If we're already a "suspect class" in California, how is it possible that the voters were able to even enter Prop 8 onto the ballot — and have the vote be upheld?! The fact that it was possible to do both should be strong argument toward our political powerlessness.

  • 41. Bob  |  January 16, 2010 at 10:08 pm

    Beth, thank you. In the scheme of things as Walker had pointed out, how did PROP 8 get on the ballot? Why did a proposition that effected only a suspect class of people not go through a state level review?

  • 42. Wade MacMorrighan  |  January 17, 2010 at 12:22 am

    Guys, as a resident of Iowa, I, too, would LOVE an answer to this question! After all, it bolsters our religious reich who are members of a newly formed group called "LUV Iowa" (LUV=Let Us Vote). They keep screaming at the justices and our legislators, "LET US VOTE!!! LET US VOTE!!!"

  • 43. David Kimble  |  January 17, 2010 at 2:06 am

    While I am no legal scholar, nor even an attorney – I think I remember hearing something about during the Prop 8 campaign that the Proposition at the ballot was the fastest course for them succeed. Incidentally, I am a California resident and questioned this very thing during the campaign.

  • 44. David Kimble  |  January 17, 2010 at 2:15 am

    Sorry, I forgot to mention see Paul's post about "suspect class" for more information on this one.

  • 45. Marco Luxe  |  January 17, 2010 at 9:06 am

    Stupid California "proposition" and "amendment" plebiscite scheme. Glib answer why Prop 8 wasn't banned from voting: judges are lazy and don't rule before they are forced to. They let the propositions get on the ballot, the first fight only being over the language/wording.
    Then if a prop passes, in goes into effect but a challenge to Prop 8 jumped to the CAL Sup Ct since it conflicted with their prior ruling in Marriage Cases [suspect class found]. Now the Cal Supremes punted big time. They should have rejected Prop 8, but claimed the constitutional grounds they relied on to find strict scrutiny were changed slightly by prop 8. Gays are still a suspect class, and laws that target them are unconstitutional … EXCEPT when it comes to the one and only word marriage, but not the underlying rights of civil marriage. They weasled it big time [no offense to Mustelidae]. So we do have marriage "equality" in CAL except for equal use of the word marriage [and all the federal rights, of course]. Some equality!

  • 46. Lymis  |  January 18, 2010 at 12:59 am

    Okay, yes they weaseled it, but under the system they are stuck with they had exactly two choices:

    1) weasel it, as you say, reinforce the guarantee of equality and equal treatment and interpret the rewrite to the Constitution as ONLY applying to the label, or

    2) striking down marriage for every citizen of California and invalidate every single marriage in the state, no matter how long it had been in place (if everyone has to be treated equally, and one group can't have something, then nobody gets it…)

    In fact, in their ruling mandating marriage equality, they explicitly said that the only way to fix things at the time was give gays marriage or wipe it out for everyone.

    While it may have been the most technically legal thing to do at the time, what do you think the consequences would have been? A reasoned and calm response by the citizens that gosh, maybe we overstepped things and let's all hug and reinstate marriage for everyone in two years, or a firestorm of intolerance and unreason?

  • 47. Chris  |  January 16, 2010 at 11:21 pm

    As one of the straight folks here, I'm sorry if I haven't gleened, or possibly missed, the point, but I have a question.

    If we win this, and win at SCOTUS, does that mean that this changes things for the entire country?

    P.S. I hope you don't mind me jumping in on the "we".

  • 48. Alan E.  |  January 17, 2010 at 1:06 am

    I don't think anybody here would you mind jumping on the "we" bandwagon. To answer your question, though, it all depends on how they make their ruling. It could certainly throw out every ban in all states, but it could also rule in this one particular case so as it won't affect every other state until the wording of the individual measures are reviewed to show similarity. Some states could argue that their wording is different and doesn't fall under the same "category."

  • 49. Chris  |  January 17, 2010 at 1:11 am

    I had imagined there would be a chance of it changing teh entire nation, but I can't wrap my mind around the fact that the MSM isn't carrying this more. I guess, like someone else said, it'd be a different story had there been video coverage.

  • 50. RAL  |  January 17, 2010 at 1:33 am


    Thank you for your more complete and accurate answer. I answered below but did so without thinking through all of the complexities. I think that Olson and Boies certainly hope and intend for this case to culminate in the striking down of all the State bans but, right, that may or may not be what happens — even if SCOTUS rules in our favor.

    This underscores the importance of and need for more and more straight allies. As this national conversation re: marriage equality continues and cultural attitudes continue to shift, I believe our superior arguments will eventually win the day anyway. It would be nice if we were already there but we're not. I support using both courts and patient public persuasion to get there.

  • 51. michael  |  January 17, 2010 at 2:44 am

    I think we already have the allies really. 37 million people in California. 7 million people vote for H8. We need to just encourage the rest of them to stand with us and vote with us.

    I also think that the H8ers were only able to get the votes out because they targeted religious people and Seniors with the "they are trying to force their "choice" on all of us" argument. Since as we can see from testimony they have been brainwashed with this nonsense for years it is no surprise. Getting the information out will change hearts and minds. Which is why they have blocked access to the trial.

  • 52. RAL  |  January 16, 2010 at 11:38 pm

    Hello Chris,

    If we win this AND the SCOTUS sides with us then, yes, it knocks down all the other marriage amendments in the US that exclude us.

    P.S. the "we" is fine because if we are to prevail it will be because our straight allies are right there with us.

  • 53. Amicus  |  January 17, 2010 at 12:47 am

    On Paul's point #4, it is important (I think) to note that Catholic doctrine, in fact, stipulates to this.

    Their prescription for such a "class" is celibacy. But, they do, in fact, admit that such a class "exists".

  • 54. Daniel  |  January 17, 2010 at 1:26 am

    you make the point I was going to…we have freedom of religion, religion is one of the biggest CHOICES anyone can make in this country. Whether or not homosexuality is a choice shouldn't matter under those guildelines. In fact, there are other protected groups…military status (CHOICE), familial status (CHOICE), etc (that may just be on the state level here in Oregon)

  • 55. Bill  |  January 17, 2010 at 3:16 am

    No matter how old I get. No matter how cynical or enlightened, I simply will never be able to understand the heterosexual's driving need to abuse their LGTB offspring, not only in their own neighborhoods, homes, and families, but via the law as well.

    But these past years, watching them slither about the country attempting to and often succeeding in carving their LGTB offspring out of the United States Constitution is simply a moral low from which I do not believe they can recover.

    Morality indeed.

  • 56. Lymis  |  January 17, 2010 at 3:28 am

    "If gays and lesbians are the suspect class who are precluded from marriage, then nothing in their argument would preclude a law that allowed gays and lesbians to marry same-sex, but required bisexuals to marry opposite-sex only."

    It doesn't work that way. They don't declare the minority group suspect; they declare the defining characteristic suspect. "Race" is a suspect class, not being black or Native American. "Religion" is a suspect class, not being Jewish or Buddhist.

    The court would not declare that gay and lesbian people are a suspect class. They would declare that because of the historic discrimination against gay and lesbian people, sexual orientation is a suspect class.

    In practice, because of the realities, of course, most of the time it protects the minority from the majority.

  • 57. julie  |  January 17, 2010 at 5:09 am

    ok lets review- the majority never see the need to change. we are a minority we see the need to change. we are never going to be treated equally until the 14th ammendment is changed to include "sexual orientation" along with gender and race as suspect classes. period end of story. only way to do that is through the courts. begging for our rights from the majority on one issue(marriage)-we as a minority are never going to win- and it wont give us all the rights we need.

  • 58. Chairm  |  January 17, 2010 at 6:12 am

    The Massachussetts high court did not follow the standards of rational basis analysis. It also did not say that there was no rational basis for the man-woman criterion of marriage.

    In Iowa, the high court began with its conclusion. It did so by relying on same-sex sexual attraction and romance. It did not describe how a license, much less the special status of marriage, is merited for on that basis — and there is no legal requirement for same-sex sexual attraciton and romance.

    The high court in Connecticut similarly spun its wheels.

    Society, via government, may justly discriminate between marriage and nonmarriage. So the real issue is not the creation of a new suspect class of people, but rather the accurate recognition of the core meaning of marriage.

    That is, what is it about marriage that makes it differnt from other types of relationshps and arrangements? This differnce must exist prior to the licensing regime and prior to the special status accorded marriage. It is that difference that merits this sort of state interest.

    No pro-SSM court opinion has put its finger on what makes SSM different from the rest of nonmarriage. Yet those opinions stand on a predrawn conclusion, not proven at court, that the gaycentric one-sexed arrangement is no different than marriage.

    This federal bench trial is revealing that the SSM arguments have not advanced on iota since the Hawiai case that prompted that state's marriage amendment.

  • 59. paulhogarth  |  January 17, 2010 at 6:40 am

    Chairm, where do I even start about your comment??

    First, you're wrong to say that we have not advanced "an iota" since the Hawaii case in the mid-90's. Back then, the only hope gay marriage advocates had was to argue it was "gender discrimination" to only have man-woman marriage, because gender — not sexual orientation — was a recognized "suspect class."

    I never really liked the argument, but from a legal standpoint I always understood why we made it. Now that more states are starting to recognize gays as a "suspect class" we can be more honest — and call it what it is: discrimination based on one's sexual orientation.

    As for the Massachusetts case, here is the appropriate section: "The [state] argues that no fundamental right or suspect class is at issue here, and rational
    basis is the appropriate standard of review. For the reasons we explain below, we conclude that the
    marriage ban does not meet the rational basis test for either due process or equal protection. Because the
    statute does not survive rational basis review, we do not consider the plaintiffs' arguments that this case
    merits strict judicial scrutiny
    [my emphasis]."

    Finally, as for the Connecticut case (which can be read at:… ), it's true that they did not find gays to be a "suspect class" subject to strict scrutiny – but they found them to be a "quasi-suspect class" subject to intermediate scrutiny — which would effectively put them at the same level as gender.

  • 60. RAL  |  January 17, 2010 at 6:51 am

    So Chairm,

    Do you endorse the true definition of marriage as being between one man and ONE woman? Let's be very specific about the number ONE.

  • 61. RCR  |  January 17, 2010 at 2:17 pm

    Chairm is a regular anti-gay commenter on NOM's Blogs.

  • 62. Gayle Madwin  |  January 17, 2010 at 7:02 am

    Paul, thank you for pointing out that the courts have recognized religion as a suspect class despite the fact that it's certainly not innate. I would also like to point out that in loving v. Virginia, the court used "strict scrutiny" to overturn the ban on interracial marriage on the basis that both members of an interracial couple are born into their different races, even though no one posited any "interracialsexual gene" that would make those people incapable of having fulfilling relationships with members of their own race. The point was that they already had fulfilling relationships.

    Similarly, both members of a same-sex couple are born as members of the same sex. Since sex discrimination is currently only given "intermediate scrutiny" by the courts, same-sex couples would also receive only "intermediate scrutiny" by this line of reasoning – but that would still be a big improvement over "rational basis."

  • 63. Bill  |  January 17, 2010 at 12:55 pm

    "I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident: that all men (peoples) are created equal." Dr. MLK Jr. 1963. And we are still no closer to realizing that dream in the entirety of his vast vision than the day he delivered this speech.

    Not the same; but equal. And even today, there is a furious court battle up in federal court in SF where there are still those who do not believe that everyone is equal, but their tax dollars are equal, and the natural born citizenship is equal. And yet the "State" still does not recognize and legislate equality for all.

  • 64. Chris  |  January 17, 2010 at 1:23 pm

    Don't forget this line
    "America has given the Negro people a bad check, a check which has come back marked "insufficient funds."
    I think it could apply here as well.

  • 65. Bill  |  January 17, 2010 at 1:13 pm

    Reading the comments. Laughing so hard. My parents were vehemently straight. No one said anything negative about gay people in my house or church. (Episcopalian)

    But, I was HIGHLY and HEAVILY recruited by the heteros, and it did not change my orientation. It was assumed I'd be one of them….. Just silly. I came from the straight island but guess what? We all did….. Benighted?!?!

    I am 6ft3, played football, hockey, baseball, and many others, and everybody liked me and no one disrespected me, to my face.

    It does not make a tinker's damn what fears people have, it does not change the batter. You follow the recipe, but when you have kids, you get what you get.

  • 66. Lon  |  January 17, 2010 at 2:37 pm

    I'm very concerned about Paul's four points. The first three seem solid enough, but the fourth is problematic. There are a few different reasons that could be used to prevent there being an LGBT Suspect Class.

    First, is the obvious problem that physical action and desire do not need to go hand in hand. Any human can have physical relations with any other. Thus, the conversionists argue, one can be cured of the gay. It is not impossible for a gay to have straight sex. (This part Paul discusses).

    Second, is the subtle problem of proving desire. That one is entirely gay is not something that can be easily demonstrated.

    Third, not all "gays" are 100% gay. Many of us consider sexuality to be a spectrum … not a binary condition. If it were a binary condition (you are either straight or you are bent), then immutability would be easier to defend.

    Fourth, which is really an extension of third, human socialization can be complicated when "expected abnormalities" are thrown into the mix. I am referring here to people on the autism spectrum. As a person who is said to have "Aspergers Syndrome", I am among those who don't understand why gender is important in selecting a partner/spouse.

    This one, something I generally won't discuss with anyone, results in my boyfriend of half a decade identifying as gay but not doing so myself.

    I realize that I do not fit neatly into the LGBT community. When people talk, either positively or negatively, about gays they are usually not talking about me. But, the consequences of this trial and its subsequent appeal will affect me financially and emotionally as much as anyone else.

    Now, Paul argues that religion is a Suspect Class even though everyone recognizes the right of people to convert … which is more accepted as normal than gender preference conversion. Sounds good. But the Bill of Rights establishes a special case for religion. It isn't a wall between church and state, but an extreme protection from being excluded by another religion being the religion of the state. There is no similar protection for any business or individual and I can't imagine there being an equivalence seen for sexuality.

    Suspect Class sounds useful if it is achieved. I am not optimistic that it will be achieved. Relying on achieving it would be a mistake. Immutability of sexuality is a weak spot. I think that Boies and Olson have strong cases to make without Suspect Class status.

  • 67. Lymis  |  January 18, 2010 at 1:10 am

    By any logical analysis, gays are certainly an identifiable group subject to historical discrimination. It doesn't matter if some of us can hide or be forced into straight-appearing relationships; that is just more proof of the discrimination, just as it would be discrimination to give Jews rights only if they attended Christian Churches, or gay women rights only if they cross-dressed and acted as men.

    But even rational basis fails miserably when you look at it. If a sterile couple can marry, then a gay couple who can't have kids is no different.
    If convicted felons on death row have a constitutional right to marry, if convicted wife beaters and child molesters have a constitutional right to marry, if people can marry against the explicit rules of their own religions (remarried Catholics, Jews marrying Gentiles), then the net effect is that any rationale that prohibits gay people from marrying is already ignored when allowing similarly situated straight couples from marrying.

    The only things left are "we've always done it this way" and "other people disapprove," neither of which pass any rational basis.

  • 68. Kevin  |  January 18, 2010 at 10:04 am

    I think you've disproved your own point by claiming that "I realize that I do not fit neatly into the LGBT community." The fact of the matter is that for those who *self-identify* as gay men, sex with women is, at least a great majority of the time, a physical impossibility.

  • 69. Lon  |  January 19, 2010 at 11:42 am

    It is not a physical impossibility. It may not be something you want to do. I'm not arguing the psychological level. Rather, it is anatomically possible. That one finds something disgusting does not mean that one cannot do it. (This is true whether we are discussing taking a medication that tastes foul or engaging in an act of intimacy.)

    My point is that the courts are not likely to grant immutability as part of being gay, thus making "Suspect Class" unlikely.

    (No question in my mind that the gay conversion industry is nonsense. The courts have not weighed in.)

  • 70. Alvin  |  January 18, 2010 at 3:58 am

    bill, you need to get your head out of your _ _ _ and smell the roses because what you're smelling only helps the
    roses to grow.

  • 71. Ray Fisher  |  January 18, 2010 at 8:07 am

    You make the point that the California Supreme Court has ruled that gays are a "suspect class"…then why didn't they toss out prop 8 to begin with?

  • 72. James  |  January 18, 2010 at 6:59 pm

    Is this all a bad joke!? It's all so upside-down and unjust that I can't stand it!!!! The only explanation must be that this situation is some sort of cosmic practical joke.

    After following as much of this as I can, I've seen the most vicious bullies crying they're the victims, I've seen the oh-so arrogantly self-righteous cheat, lie and deceive to get what they want, I've seen I've seen "loving" christians filled with so much hate and such little empathy going out of their way to cause so much misery, and all for NO GOOD REASON. Their hypocrisy is without limits it seems!

    What is it with these people??? Do they know how egregious they are, or do you really think the irony is lost on them?

    JUST SO ANGRY!!!! And I don't even live in the US!

    (sorry, rant over 🙂

  • 73. David  |  January 23, 2010 at 4:31 am

    Sorry, James, I don't an answer on this one, but I suspect it may be all what you cite in your post. Except is important to remember history and realize that things do change, it just takes time. I can remember a time in America, when the word 'gay' was not even in the lexicon of American language, except that it meant 'silly'. We have come a long way, but we still have a long way to go. The road is seldom an easy one, but I have learned it is worth the travel to get there.

  • 74. James Sweet  |  January 19, 2010 at 3:47 am

    (1) Are gays a “discrete and insular” (i.e., identifiable) minority? Nobody’s really arguing this point.

    Actually, I'm pretty sure the defense was already going after this point last week when they were grilling one of the plaintiffs' witnesses about the definition of "homosexual"….

  • 75. Chris  |  January 19, 2010 at 7:54 am

    Allan, I am one of your straight allies.(Re your blog Jan17th) As the mother of 4 adult children, 3 girls and 1 boy, I am proud to say that I have a wonderful gay son who has a loving partner.
    Every year I look forward so much to my visits with them in L.A. as, I am welcomed by their fabulous friends with whom I have become quite attached. ( most them are also gay)
    I am horrified that in this day and age… when we are expected to be politically correct…., and charged with treating people as equals…. because we live in a Country where there is Liberty and Justice for all……. the courts are deciding if my son is worthy of being treated as an equal!!!
    Incarcerated murderers are permitted to marry. Non citizens are permitted to marry. And some developmentaly disabled individuals are permited to marry.
    Yet there are some supposedly upstanding citizens attempting to deny my law abiding son and his partner the same rights a murderer has??? And worse… why do they care if 2 loving people marry and have children by adoption or surrogacy.
    The murderer might have several children who will most likely be suported on Welfare benefits.
    I think it is time the courts spend time of the real issues affecting society such as murder, rape, robbery and violence.
    Just leave the law abiding Americans alone .Some of the gay and lesbian couples I have had the privilege of meeting are better parents than some of the hertosexual couples I know. AND, most of them have had the same partner longer than some of my multi divorced friends.
    Those of you who are fighting against Gay marriages need to get out in the real world and focus on the real problems in society.
    Furthermore, secreting trials and protecting those who are testifying based purely on their opinions seems somewhat like the Mc Carthy hearings.

  • 76. David  |  January 23, 2010 at 4:34 am

    Thank you, Chris, for sharing this bit of your life with us. It makes me proud to see there are others that believe, as we do; equality for one should mean equality for all.

  • 77. APOLARITY » Blog Ar&hellip  |  January 24, 2010 at 10:51 pm

    […] “Home Court Advantage” and Determining Scrutiny, both from Prop 8 Trial Tracker, are helpful explanations of the process by which the case will be decided, and which side will be deemed to have the burden of proof. […]

  • 78. Historic DOMA Ruling Coul&hellip  |  July 10, 2010 at 7:12 am

    […] is this so important? Because having live-blogged the Prop 8 trial, I’ve become very concerned about how we could get the federal courts to strike it down – if no federal court has ever found […]

  • 79. “Facts are stubborn&hellip  |  August 5, 2010 at 5:46 am

    […] 8 even fails the rational basis test.  One of the essential elements of a suspect class (which I explained in detail before) is if gays are a distinct minority, whose trait is immutable and an essential element of […]

  • 80. KP  |  December 8, 2010 at 10:27 am

    "Gays" cannot be a suspect class. A suspect class is more general. For example, "race" is a suspect class. Thus, you cannot be discriminated against based on your race. Age is similar.

    In this case, "sexuality" would be the suspect class. Therefore straight, gay, asexual, etc. people could not be discriminated against because of their sexuality.

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