random quotes ... to amuse, inspire, enrage:
  Behold, my brothers, the spring has come; the earth has received the embraces of the sun and we shall soon see the results of that love!

Every seed has awakened and so has all animal life. It is through this mysterious power that we too have our being and we therefore yield to our neighbors, even our animal neighbors, the same right as ourselves, to inhabit this land.

Yet hear me, my people, we have now to deal with another race -- small and feeble when our fathers first met them, but now great and overbearing. Strangely enough they have a mind to till the soil and the love of possessions is a disease with them . . . They claim this mother of ours, the earth, for their own, and fence their neighbors away; they deface her with their buildings and their refuse.

tagged: The earth, white people, environment, property, land as property, pollution, Native American
  —Sitting Bull , Sitting Bull [Hunkpapa Teton Sioux], from his Speech at the Powder River Council, 1877 [quoted by Bill, Exploratorium].

gay marriage & Equal Protection jurisprudence

Friday, May 16th, 2008 9:37 am

Well, I loved the California same-sex marriage decision. Not just because it granted same-sex marriage, and not just because it said that the state needs to use the same term to refer to same-sex and opposite-sex unions, but because it significantly expanded Equal Protection jurisprudence.

For the non-law-geeks out there, federal and state constitutional guarantees of “equal protection” apply only to certain protected classes (“suspect classifications”), and now homosexuality, in California, gets the highest protection. Here’s how it works. When determining whether a law or action violates equal protection, a court will determine whether (a) a fundamental right is being violated, in which case the court will apply “strict scrutiny”; or (b) what classes of people are being treated differently. If the class is race, the court applies “strict scrutiny”, as it does with violations of fundamental rights. Gender gets “intermediate” scrutiny. The lowest level of scrutiny is a “rational basis review”. If the class has not been deemed a “discrete and insular minority” that has routinely and historically suffered discrimination, then the court applies a rational basis review — a much lower standard of review. Basically, a law that discriminates a class of people is okay under rational basis review, so long as the government has any rational basis for the action. Any law that creates multiple classes is subject, by default, to this review. For instance, “taxpayers” and “non-taxpayers”.

Courts have consistently declined to apply any heightened scrutiny to laws that discriminate on the basis of sexual orientation. Instead, they have applied “rational basis review with bite” — finding that some laws that discriminated against homosexuals did not even have a rational basis. For instance, Colorado’s Amendment 2 failed rational basis review. This is nice on the one hand, because it is an affirmative slap at the law, making it plain that really nasty discrimination is irrational. On the other hand, it makes it very hard to strike down such laws, because it doesn’t recognize the “class-ness” of homosexuality — the fact that gay people are treated as a class and routinely discriminated against.

So the California decision is the first to recognize that gay people are treated as a class and routinely discriminated against. Which means that, in California, we have a lot more protection now. And even if the right-wingers who are freaking out manage to define California’s marriage laws to exclude me and Michele, that won’t undo the strict scrutiny holding.

Ha.

algorithmically similar posts:

» same-sex marriage decisions, 2004-10-06 (score:52)
» what is rational: rationally angry about irrational decisions, 2006-07-06 (score:36)
» Canada Supreme Court OKs SSM, 2004-12-09 (score:35)
» NJ SSM decision, 2006-10-25 (score:34)

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