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Editorial

Homosexuality and the law

Gays and lesbians should be considered a minority group privileged to the court standard of 'strict scrutiny.'

August 09, 2010

In striking down Proposition 8, U.S. District Chief Judge Vaughn R. Walker penned an opinion that was heavy on findings of fact. In eloquent detail, he described the evidence presented at trial, and the utter lack of evidence for any of the arguments used to deny marriage to gay and lesbian couples. Though higher courts may overturn Walker's conclusions, the facts laid out should remain an important part of any future legal considerations.

But tucked away in the opinion is something else that could carry weight not only in this lawsuit, as it moves through the courts, but in other same-sex marriage cases and debates about the rights of gays and lesbians. It is a brief statement addressing whether homosexuals should be regarded as the kind of minority group that deserves special protection by the courts under the 14th Amendment of the Constitution.

"The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation," Walker wrote. "All classifications based on sexual orientation appear suspect."

What the legalese refers to is that laws affecting certain minority groups are held to a higher standard by the courts — a standard known as strict scrutiny — when they are challenged as discriminatory.

The standard applies to laws affecting minority groups that fall within "suspect classifications," but the courts have not been entirely clear about the criteria for receiving this special protection. They have said, among other things, that such groups must have been historically targeted by discrimination; must be a "discrete" and "insular" community; must be a minority because of an unchangeable characteristic; and must have lacked the power to protect themselves using the political process. Groups don't necessarily have to meet all four, and other factors could be considered. Among the classifications that have qualified for this protection are race and national origin. Could the same apply to sexual orientation?

We think so. There is no doubt that gays and lesbians have historically been singled out for discrimination, to the point that until relatively recently, most were too afraid of the repercussions to reveal information about their sexuality. The vitriol hurled their way during the marriage debate only adds to the evidence. As a result, they have formed a community that is, in many ways, insular and that certainly is seen as a separate, distinctive group.

One of the more divisive arguments about homosexuality is whether it is a mere choice, or inborn. But the American Psychological Assn. states clearly that although the factors determining sexual orientation are complicated, it is not a choice and cannot be changed.

As to whether the homosexual community has been a relatively powerless group in the political arena, the picture is more mixed. It has not lacked a certain economic clout, but homosexuals have also suffered workplace discrimination. There are few openly gay or lesbian politicians.

Walker did not depend on strict scrutiny to strike down Proposition 8; he said that wasn't necessary because the measure is based on so many unfounded claims that there was not even a rational basis for it (which is the lower standard for reviewing a law). Higher courts might or might not bring in the issue of strict scrutiny; if they do, and homosexuality is found to be a suspect classification, that would make it extremely difficult for any restrictions on same-sex marriage to pass legal muster. To meet the strict scrutiny standard, a law must be justified by a "compelling governmental interest" and must be "narrowly tailored" to achieve that interest, among other things.

By our count, the long history of vilification, housing and employment discrimination, and outright physical attacks against gay and lesbian people calls for recognition that this group deserves the utmost protection of the courts.

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