What we really lost in the recent marriage decisions

[dsc]

New York and Washington's supreme courts are among the most liberal in the nation. New York's especially is both well regarded and can be relied upon to expand individual rights. If there ever were a state that one would assume would be likely to extend the 14 Amendment, or its New York equivalent, to gays and lesbians, New York would be it. Yet they did the exact opposite.

First, some backround. If a state wants to discriminate on the basis of race it must meet strict scrutiny. Under strict scrutiny a law must meet a legitimate state purpose and be narrowly tailored to advance that purpose. Such laws are assumed to be unconstitutional unless proven otherwise. It is a very high standard and thus we have very few laws which permit racial discrimination by governmental bodies.

If a state wishes to discriminate on the basis of gender it must meet an intermediate level of scrutiny. A state must still justify permitting gender discrimination but the scrutiny isn't quite as high. Thus a state can provide coverage for viagra but not birth control.

Finally for most other classes there is the rational basis test. For this test a state just needs to have a reason for the discrimination. This test is exceptionally easy to pass. Courts don't look at the veracity of the reason thus a reason can be a sham. They can use conflicting reasoning and don't even have to show that the law is at all tailored toward the promotion of that goal.

Many of us had hoped to see discrimination against gays and lesbians treated by courts as at least as problematic as gender discrimination. We would have loved to see the strict scrutiny standard. Instead, one of the most liberal courts in the US has decided upon the rational basis standard. If liberal courts have decided on this standard then we have little hope of the current federal judiciary apply more rigourous standards. We lost a great deal with these decisions. We almost surely are going to have to win the ENDA battle in the Congress now. This wasn't just marriage it was much larger.

Frankly I think we made a massive strategic blunder here. We should have instead sued in liberal states that didn't have ENDA laws to outlaw anti gay discrimination. Get a few states on record applying some scrutiny for LGBT discrimination and then sue for marriage.

[sui generis]

1. it sounds like our challenges have to be on rational basis

if it's quoted.

So if the state has a rational interest in procreation, and marriage is the delivery mechanism, and the state is excluding people of the same sex from marriage because they can't technically procreate with each other, then that is the fallacy we have to attack.

When the state says that gay parents raising a child is not traditional and is harmful to the child's development, we have to prove there is neither a rational test nor a legal exclusion for gay opposite gender marriages to be licensed, nor is there a test for heterosexuality.

There is no such thing as "anti gay" in the law. It is sexual orientation. More specifically our rationale has been to fight on the term of "sexual" rather than "gender" and on "gender" rather than "affectional". We have bought their bullshit and we're fighting on their turf by doing so.

We need to take the battle further. Anywhere that "affectional orientation" discrimination is upheld, we need to establish that a legal non-hearsay test for heterosexuality exists. Otherwise, I would deny employment to people who are presumed hetersexual. I would deny entry to my gay restaurants, deny them credit with my company, deny them leases, mortgages, and even deny selling them gas at my gas stations and groceries at my grocery stores.

I want it stamped on their ID's like their eye and hair color and height. I LOVE the idea of being able to discriminate against people based on their affectional orientation, and I think they should have to take an annual test to make sure they haven't changed or broadened their definitions. :sarcasm:

Seriously though, you are right; we're fighting stupid. Nobody gives a crap if our feelings are hurt. Nobody believes it could also happen to them, so we need to make it happen to them.

[dsc]

2. You misunderstand rational basis

it really is a very weak standard. It basicly is just any reason that might possibly make some sense. The reason doesn't have to be honest, it doesn't have to be consistent, it doesn't even have to be related. It pretty much just has to exist.

[sui generis]

3. I understand that, clearly.

And weak as the standard is, we still die by it in court and the legislature. My point is that we fight poorly and allow ourselves to be trapped with semantics. If we are going to blithely step into those traps we may as well make sure they accommodate everyone.

[Meldread]

4. I'm starting to agree with you.

I think it might be time to circle the wagons and begin rethinking our approach. We are running into many different problems, the ones you pointed out are the most serious.

Our first action needs to be to throw our resources into Massachusetts. We have to ensure that gay marriage remains within the state at all costs. When Romney fails in his Presidential bid and is replaced as Governor we might be able to see out-of-state people being able to enter Massachusetts to get married. Then we should be able to take that fight to other states demanding those marriages be recognized.

However, using the courts will end up dragging things out even longer. It may end up like Abortion - something that many people view as "legislation from the bench". We need - we must - make sure however we get our rights that it is viewed as something obtained without some type of political trickery. We do not want this to drag on and on, even after it becomes legal - in fact if push comes to shove Democrats might even cave and support a Constitutional Amendment to ban gay marriage all together.

Fighting in the legislature is the best idea. We almost did it in California, if not for the Gopanator vetoing it. Once he is out of the way, we should try again. Then that will be two states with legal gay marriage. Then someone from one of those states should sue the Federal Government because they can't file taxes as a married couple. This would force the Federal Government to recognize gay marriage, which opens the box for it to spread throughout the rest of the country.