January 16, 2010
By Paul Hogarth
So much of the law hinges on which side has the burden of proof. The team with “home court advantage” doesn’t have to prove anything — and right now, unfortunately, it’s the Prop 8 side. Because federal courts haven’t recognized gays as a “suspect class,” our side’s task is to affirmatively prove there was no rational basis for Prop 8 — that all their “reasons” are just bigotry by another name. Any reason the opposition cites that is not “irrational” can disprove our case. Moreover, the Court can even dream up a rational basis – like they did in New York (“straights might accidentally have kids, so there’s more of a reason to let them marry.”)
But if somehow this case leads to gays being a “suspect class,” the tables are turned. The Prop 8 side would then have to prove there was a compelling public interest — narrowly tailored through the least restrictive means. If we then poke holes in the interest cited, we win. I’ve written a lot about this in the past week — but haven’t explored in depth: how do we make gays a suspect class, and what are the odds that a federal court would take the leap that it hasn’t yet done that would legitimize sexual orientation?
To date, only three State Supreme Courts have recognized gays as a “suspect class” — California, Iowa and Connecticut — and not co-incidentally, they all ruled in favor of gay marriage. Massachusetts also ruled for gay marriage, but what’s interesting about that case is they never said gays are a “suspect class.” The Court said we don’t even need to go there — because there is no possible rational basis to deny gays to marry. Of course, all these cases were about an individual state’s constitution — not the federal.
Colorado’s Supreme Court — in Evans v. Romer (1994) — said gays are a suspect class under the federal Constitution, and repealed Colorado’s Amendment 2. The decision to throw out Amendment 2 was affirmed in Romer v. Evans (1996), but the U.S. Supreme Court said they were doing so “on a rationale different from that adopted by the State Supreme Court.” Justice Kennedy went on to argue Amendment 2 doesn’t even pass the lenient rational basis test. That could mean one of two things: either he meant gays are not a suspect class, or like Massachusetts he was saying “we don’t even have to go there.” A footnote in Romer does explicitly say that the Court “evidently agrees” gays are not a suspect class, but that was part of Scalia’s dissent – so it is not binding precedent.
In other words, the feds have not found gays to be a “suspect class” — but arguably they never really said the opposite. What would have to be proven that gays are a suspect class? As I mentioned on Thursday, the U.S. Supreme Court has a four-part analysis:
(1) Are gays a “discrete and insular” (i.e., identifiable) minority? Nobody’s really arguing this point.
(2) Do gays have a history of discrimination? Again, we find this truth to be self-evident.
(3) Are gays politically powerless so as to be in need of assistance? That’s why the Prop 8 side — when they cross-examined Yale historian George Chauncey — kept pointing out how gays have become more politically powerful in recent years, that Nancy Pelosi is a “strong ally” and that “Brokeback Mountain” and “Will & Grace” are popular. On the marriage issue, however, a counterpoint — which I wish our side had made – is that 31 states have passed anti-gay amendments, along with DOMA on the federal level. At least on the issue of marriage (which the federal courts have found to be a “fundamental right”), gays are politically vulnerable.
(4) Is being gay an immutable trait? ”Immutable” means the identifiable trait cannot be changed – like race. One thing I found interesting about Dr. Tam’s video testimony was when he was asked about civil rights: “I believe civil rights to be about skin color — something you can’t change [my emphasis].“ Homophobia is truly on trial here, because the question is whether the Court believes that gays are just “born that way” or they can “be converted.” Alternately, however, the courts have recognized religion to be a “suspect class” – even though people can change their religion. But then the question is whether it’s a trait so key to a person’s identity that it would be wrong to make them change. Not if gays could change — but whether gays should change.
Nobody really expects this Supreme Court to go so far as to call gays a “suspect class.” But the fact no court (as far as I can tell) has found them not to be a “suspect class” keeps me hopeful. And with the testimony our side has brought in — from the history of discrimination to the plaintiffs’ very personal stories — there is plenty of ammunition in this case to argue that point on appeal.