American Foundation for Equal Rights

Los Angeles Times: Homosexuality and the law

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.

Read the full piece here.