Originally Posted by Daniel
In a majority of them, the bar was set too low. These courts used a lower standard of judicial review. I sum, these rulings said: ""You aren't a class or a group so we can't give you the right you want here.
Let me restate: Until GLBTQ persons are recognized as a class in the courts in the United States of Amercia, they won't have any civil rights.
The attainment of marriage rights will, I believe, open the door to pretty much everything else. That's why conservatives fear it so much.
I agree on the last point that marriage is a critical, critical thing for us. The anti group is very aware of this, and that's why they're so up in arms about it.
On the legal issues, I agree that things would be far easier for us if we were treated as a suspect classification for purposes of equal protection. That's been a huge stumbling block in many places because, as you probably know, if we are not a suspect classification, the law is considered constitutional if it meets the "rational basis" test (which is easy to meet). Although I would say, editorially, that in my view the Court of Appeals of NY came up with an extremely odd rational basis for NY's restrictive law ... it had the appearance of clutching at straws, to be honest, but a rational basis test permits that.
From my perspective, I think we still have a good shot under a "substantive due process"/fundamental rights analysis, regardless of whether we are a suspect class or not. In other words, the line of cases from Loving v. Virginia
are pretty solid on the idea that marriage is a fundamental right such that restrictions on it are subject to a high degree of scrutiny. When you read those together with the majority opinion in Lawrence v. Texas
, it isn't hard to reach the conclusion that because marriage itself is a fundamental right, statutes that operate to bar access to that right based on sexual orientation are not constitutional. In other words, if Lawrence
stands for the proposition that the state cannot make it illegal for gay people to have sex (on the basis that sexual intimacy is a fundamental right), and Loving
and so forth stand for the proposition that marriage is a fundamental right ... it's not hard to conclude that the state cannot make it impossible for gay people to have access to marriage (or, arguably, something the same as marriage in terms of benefits but called something else) because marriage, like sexual intimacy, is a fundamental right. I think that this argument has some "legs" constitutionally, as evidenced by Justice Scalia's fears expressed in his dissent in Lawrence
. The main problem I see with it (other than the issue of whether the court were to view it as an equal protection or substantive due process issue) is that it may not have enough votes given the current Supreme Court lineup, a lineup which may very well have reached a different conclusion in Lawrence
were it the lineup at the time.
Ugh, a bit of a technical post, but alas some of these issues are a bit technical.