The Louder They Shout, The More They Want It

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Gay Marriage and Religious Freedom -- Why the emphasis on male homosexuality?

An excellent article published in the New York Post on 20 April 2009 correctly observes that the vast majority of homophobes are obsessed not with lesbian sex, but with sex between men. In fact, many of the hardest-core homophobes secretly fantasize about lesbian sex; this is something that is all too well known to purveyors of heterosexual pornography, who take full advantage of the male preoccupation with the sexual activity of lesbians, and who crank out countless heterosexual porno movies depicting two or more women “getting it on” with each other.

As a group, heterosexual women tend to be much more accepting of both male and female homosexuality than are men. Some women actually enjoy watching gay men kiss and cuddle.

It is the image of two men having sex that turns so many otherwise reasonable men (in particular) into irrational bigots, who parlay their hatred of this image into political capital and who then seek to hide their hatred of such imagery behind laws prohibiting gay persons from marrying. Not long ago, such laws also prohibited gay persons from having sex, even in the privacy of their own bedrooms. No less an entity than the US Supreme Court fell victim to this mode of regressive analysis when it handed down the obscene decision of Bowers v. Hardwick, 478 U.S. 186 (1986). The Court veered into flat-out nastiness when it ignored the due process challenge to the Georgia “sodomy” statute filed by a heterosexual couple, and concentrated only on the due process challenge filed by Michael Hardwick – the gay man who was arrested (but ultimately not prosecuted) when the police, admitted into his home in error by a houseguest, entered his bedroom and found him having consensual oral sex with another man. The Court went so far as to state that it expressed no opinion as to the constitutionality of the Georgia sodomy statute as applied to married couples, and then focused, obsessively, on this statute as applied to gay men. (The majority opinion crudely declared that “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.”) The Court repeatedly referred to “homosexual sodomy” (not gay sex, as later opinions have framed this issue).

In 2003, the US Supreme Court, realizing that it had perpetrated a gross and continuing injustice against gay persons, expressly and bluntly overruled Bowers, in Lawrence v. Texas, 539 U.S. 558 (2003). The US Supreme Court almost never directly overrules itself, usually preferring to ignore cases with which it no longer agrees, and opening up new lines of constitutional analysis that undermine the analysis undergirding the old decision, sub silentio. Back in 1996, the Court handed down Romer v. Evans, 517 U.S. 620 (1996), in which decision the court invoked an equal protection analysis to strike down an amendment to the Colorado state constitution (known as “Amendment 2”) that effectively robbed gay persons in that state of the right to petition their legislature, at all levels of state government, for protection from discrimination, in both the public and private sectors. Many constitutional scholars believed that the Romer Court had intentionally and carefully undermined Bowers by 1) invoking the Equal Protection Clause of the Fourteenth Amendment to strike down Amendment 2, thereby completely ignoring the due process analysis it had used in Bowers to mock and belittle Michael Hardwick's assertion of a right to sexual privacy, and by 2) failing to so much as even mention Bowers, despite the fact that Bowers was the most prominent case dealing with the rights of gay Americans.

The lower courts noted that the US Supreme Court had effectively crippled Bowers – the US Court of Appeals for the Seventh Circuit, in Nabozny v. Podlesny, 92 F.3d 446 (1996), noted that “Of course Bowers will soon be eclipsed in the area of equal protection by the Supreme Court’s holding in Romer v. Evans... Romer, which was decided following the oral argument in this case, struck down on equal protection grounds a Colorado constitutional amendment that discriminated against homosexuals. Although Romer bolsters our analysis in this case to some extent, we do not rely on it.”

When the Court handed down Lawrence, it employed entirely different language and an entirely different tone, noting at the outset that “[this] statement [about “homosexual sodomy”], we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”

The Lawrence Court then went on to overrule Bowers, bluntly declaring that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

When this statement was read out by Associate Justice Kennedy (who delivered the majority opinion from the bench), many gay spectators, some of whom had slept outside the US Supreme Court building all night so as to improve their chances of being seated, silently but openly wept...

The Lawrence majority conceded that it could have decided Lawrence by relying entirely on an equal protection analysis, but concluded that this would not have gone far enough. They wanted to ensure that anti-gay sex statutes would not be redrafted in such a manner as to apply to both gay and heterosexual couples, which would have preserved them from facial equal protection challenges and which would have made it necessary for gay plaintiffs to advance a "disparate impact" argument. This is indeed startling, in that the doctrine of avoidance counsels all Article III courts to decide cases before them on the narrowest possible grounds, and not to reach constitutional issues that do not have to be reached in order to resolve the instant case. This is closely related to the concept of measured constitutional steps; courts of equity generally decide cases as narrowly as possible, and defer questions of constitutional interpretation only to those cases that absolutely require such adjudication.

Associate Justice Sandra Day O'Connor wrote a separate concurrence in Lawrence, arguing that an equal protection analysis would have been better suited to Lawrence; however, five of her colleagues insisted on striking the Texas sodomy statute (and, by extension, all other such statutes nationwide) by invoking the Due Process Clause of the Fourteenth Amendment. O'Connor noted that evenhanded enforcement of a facially neutral sodomy statute would not long be tolerated by a democratic society (heterosexual men and women would not take kindly to being arrested and convicted for engaging in oral sex), and also implied that uneven enforcement of a facially neutral sodomy statute would permit gay plaintiffs to advance a disparate impact analysis; however, her colleagues on the bench were determined to drive a stake through the heart of all such statutes.

Judges sitting on the lower courts took note not just of the fact that Bowers had been overruled, but also of the tone employed by the US Supreme Court in Lawrence. The US Court of Appeals for the Seventh Circuit – considered by legal observers to be a conservative and scholarly appellate court – upheld the incest convictions of a brother and sister who had married each other (see Muth v. Frank, 412 F.3d 808 (7th Cir. 2005)), declining to extend the reach of Lawrence to cover and protect consensual adult incest (thereby dismissing Associate Justice Antonin Scalia’s rabid and embittered dissent in Lawrence, in which dissent Scalia had predicted that laws against incest would be vulnerable to constitutional attack). Although he agreed with his two colleagues on the three-judge panel that handed down Muth, Judge Evans refused to sign their opinion, stating that:

“As I read the majority opinion, I sense a certain degree of unease, even disdain, for the majority opinion in Lawrence. The citations to Justice Scalia’s dissent in Lawrence, I submit, are unnecessary. I also don’t care for the repetitive (seven mentions in Part B) paraphrasings of the Texas law (which prohibited “engaging in consensual sexual activity with a person of the same sex”) as a law prohibiting “homosexual sodomy.” I realize that term is used twice in the majority opinion in Lawrence, but I think its use is ill-advised and outdated as well. As I see it, the term “homosexual sodomy” is pejorative. It should be scrubbed from court decisions in the future. For these reasons, I join the judgment of the court without embracing certain aspects of the majority opinion.”

Again and again, we see that objections to gay sex (and gay marriage) almost invariably focus on gay men, as opposed to lesbians (I do not trivialize the abuse and cruelty heaped on lesbians by making this observation; in the 1990s, a lesbian woman named Sharon Bottoms lost custody of her son when a Virginia state court judge declared her to be an "unconvicted felon"). It is the thought of two men having sex that disturbs so many heterosexual men; more specifically, it is the thought of one man penetrating another that drives these people crazy.

The New York Post article touches upon this relatively one-sided hatred, but does not adequately explain it.

The bottom line is that we still live in a society in which gender roles and stereotypes are enforced, sometimes violently. In the eyes of homophobic heterosexual men, gay men are “sex traitors” who betray the masculine ideal by doing the one thing that men are never “supposed” to do – that is, letting other men penetrate them.

That is the rub. Sadly, this form of gender stereotyping exists even in the gay male community; I know several gay men who refuse to “bottom” on the grounds that this is “the woman’s position”. This is, in and of itself, a form of homophobia, internalized by those who express it. Such men also rob themselves of sexual experiences that are without question extremely pleasurable to the majority of gay men...

The New York Post article was eloquent and succinct when it declared that Christians will be required to surrender absolutely nothing once gay marriage becomes legal nationwide. Christians will remain free to teach their children that gay sex is evil, should they so desire. Churches will remain free to refuse to marry gay couples should such marriages fall afoul of their religious tenets. Other churches do recognize gay marriage, and will doubtless officiate at many millions of gay marriage ceremonies in years to come. Nobody will be prosecuted for preaching that gay people are evil and depraved. The US Supreme Court, in Brandenburg v. Ohio, 395 U.S. 444 (1969) made it very clear that even advocacy to break the law – even advocacy of terrorism – is protected by the First Amendment. Only when such advocacy “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” does it no longer enjoy First Amendment protection.

But back to the article – I am truly amazed that the New York Post (which has a reputation for rabid homophobia) published this piece. Clearly, the message is getting through. Maggie Gallagher has not had it easy as of late – her disastrous Presidency of the “National Organization for Marriage” has collapsed in shambles amidst snickers and guffaws of laughter over the comical video “The Gathering Storm”. Instead of being taken seriously by those to whom this video was targeted, it has spawned countless parodies. It is, in and of itself, a parody of the fears of those who oppose gay marriage – although it certainly was not intended to be a parody! At the cost of about $1.5 million, this video ranks as one of the most amusing – and abject – failures of propaganda ever launched. Joseph Goebbels would have been better able to stir up fear and resentment than were the brain-dead actors who participated in this mockery.

Five or 10 years from now, when gay marriage is legal throughout the nation, I believe that these actors will look back on their “contribution” to the discourse, and literally hang their heads in shame.

PHILIP CHANDLER

The Gathering Storm......

THE GATHERING STORM

On April 3, 2009, the Iowa Supreme Court handed down a unanimous decision (Varnum v. Brien, 07-1499) holding that the prohibition of gay marriage violated the equal protection guarantees of the Iowa State Constitution. This decision has been hailed as a model of clarity; the fact that it was also unanimous has gone a long way towards discrediting the notion that an “activist” court “found” a right to gay marriage that does not exist in the state constitution. In addition, the court held that gay persons comprise a “quasi-suspect” class for the purpose of state equal protection analysis, and that any law discriminating against gay persons much be subjected to “quasi-strict” scrutiny (or intermediate-level review). Quasi-strict scrutiny requires that any law impacting the group in question (in this case, gay persons) must be demonstrated, by the state, to be substantially related to an important government objective. This court followed the examples set by the state high courts of Massachusetts, California, and Connecticut in finding that the respective state constitutions prohibited the denial of marriage to gay couples (sadly, the California decision was reversed in November by a state constitutional amendment). Shortly after this decision was handed down, Vermont became the first state in the nation to legalize gay marriage as a result of legislative action (as opposed to prompting by a state high court); the state legislature of Vermont voted, overwhelmingly, to legalize gay marriage, overriding the Republican governor’s veto in the process.

The states of Maine and New Hampshire are currently debating this issue, and it is clear to thinking persons that it is now only a matter of time before activists for marriage equality succeed in extending equal marriage rights to gay persons in other states. Other states where gay marriage is expected to be recognized in the near future include New York and New Mexico; New York governor David Patterson has just introduced a bill that would legalize gay marriage in that state. In addition, the District Council in Washington, DC voted to recognize the validity of gay marriages entered into in those jurisdictions where gay marriage is legal; this means that a gay couple who marry in Connecticut will be recognized as married should they move to Washington, DC.

In response to this movement in the direction of marriage equality, those men and women who continue to argue that gay persons should not be permitted to marry have formed an organization named the “National Organization for Marriage” (a truly bizarre misnomer, given the fact that this organization’s remit is to prevent gay persons from marrying in those states where gay marriage is not yet recognized). Maggie Gallagher – a right-wing shill who has attacked gay marriage for many years now – sits as the President of this organization, which recently produced an advertisement named “The Gathering Storm”. This advertisement has been screened throughout New England (where gay rights activists are expending considerable energy in their campaign to legalize gay marriage), in the hope of swaying members of the public to pressure their elected representatives to vote against gay marriage.

What is remarkable about this advertisement is its comical, over-the-top, desperate atmosphere. Instead of presenting the viewers with a sober assessment of the state of gay marriage at the present time, this advertisement literally shows lightning strikes in the background and massive purple clouds brewing in the sky, as ham actors, pretending to be members of the public, talk about how “afraid” they are of gay marriage, and about how their personal and private lives have been ruined as a direct result of the legalization of gay marriage! This advertisement is actually funny – which it most certainly was not intended to be by those who produced it! Even more amusing is the fact that this advertisement cost about $1.5 million to produce! Those viewers who have seen this advertisement on YouTube (where it has been featured for several days now) overwhelmingly mock, belittle, and laugh at this production. A quick sampling of the comments posted on YouTube reveal that at least 80% of the comments ridicule and denigrate this advertisement – surely not something that Maggie Gallagher and her cohorts intended! As if this weren’t bad enough, numerous spoofs of this advertisement have been produced on YouTube – spoofs that have literally caused activists for marriage equality to roll around on the floor with laughter!

Frank Rich, writing in the New York Times, has pointed out that this advertisement represents the best and only effort of those who continue to oppose gay marriage; while Gallagher and her cronies try to attack gay couples with this inane joke, the mainstream media have pretty much ignored the developments in Iowa and Vermont, barely mentioning them in network newscasts. Those references to gay marriage that have been made by the mainstream media have largely been neutral, or even positive, in their description of these developments. A large number of actors have produced their own spoofs of “The Gathering Storm”, literally smothering this pathetic attempt at stoking the flames of bigotry and hatred with a blanket of cackling laughter.

What is truly amazing about this advertisement is the fact that the "National Organization for Marriage" paid such a massive sum of money to produce such a ludicrous and amusing spectacle.

Maggie, Maggie, what has become of you?

As Frank Rich pointed out, this is truly “The Bigots Last Hurrah”. Rich notes that support for gay marriage and opposition to gay marriage are both largely generational – and it is the older generation that opposes gay marriage. Population dynamics make it clear that the number of supporters will continue to rise, just as the number of opponents will continue to fall. Put bluntly, older people die, whereas younger people grow up and replace older people, carrying forward their more enlightened attitudes and convictions.

The movie “Searching for Bobby Fischer” contained a scene that is emblematic of the current state of gay marriage in the US. The protagonist, Joshua Waitzkin, plays against another child prodigy towards the end of the movie. Several moves deep into the game, Joshua’s opponent makes a fatal mistake, which is obvious only to those grandmasters who possess sufficient knowledge and insight into the game to appreciate the nature of this player’s mistake. Joshua spots the mistake, and offers his opponent a draw, telling him “You’ve already lost. You just don’t know it yet.”

And so it is for the "National Organization for Marriage".

The game is over. All that remains to be seen is whether those who continue to oppose gay marriage will insist on dragging their defeat and humiliation out for as long as possible, or whether they will acknowledge that they are beaten, and climb on board. All signs now are that the more intelligent and well-connected members of the right (including ex Presidential hopeful John McCain’s chief strategist) have already seen the end coming, and have decided to climb on board.

Let us behave with a degree of class that they have not shown, and sincerely welcome them.

PHILIP CHANDLER

Loving the "sinner" whilst hating the "sin"...

When I last posted on a religious "Christian" thread at www.virtueonline.org, my messages were deleted almost as fast as I could post them. This speaks volumes as to the willingness of the owner of that particular Web site to entertain ideas that run contrary to his particular worldview. I maintain my own blog, and have never deleted a message posted by any reader, because I believe that the free flow of information and ideas is central to the concept of civilized debate and discussion. However, some people have no hesitation in employing the gag and the jackboot whenever anybody posts messages that challenge their viewpoints.

One of the arguments made most frequently by homophobic bigots – particularly those who adduce their religious beliefs as justification for their special brand of hatred and obtuse morality – is that these people “love the sinner” whilst “hating the sin”. Given the depressing frequency with which this tired, trite, and hackneyed justification for cruelty, abuse, and moral condemnation is invoked, it is appropriate to examine the logical and semantic underpinnings behind this fallacious line of thinking.

Sexual orientation is not a matter of conscious moral choice, and it takes a special brand of wilful blindness to reach conclusions to the contrary. The American Psychiatric Association (APA) dropped homosexuality from the “Diagnostic and Statistical Manual of Mental Disorders” (DSM) back in 1973. This official position was later endorsed by the American Psychological Association, the Canadian Psychological Association, the Canadian Psychiatric Association, the American Medical Association, the World Health Organization, the American Academy of Pediatrics, the American Counselling Association, the American Association of School Administrators, the American Federation of Teachers, the American School Health Association, the Interfaith Alliance Foundation, the National Association of School Psychologists, the National Association of Social Workers, the National Education Association, and numerous other professional bodies. In response to this inconvenient truth, the hard right now asserts that the American Psychiatric Association was “forced” to drop homosexuality from the list of mental disorders by “militant homosexual activists” (I am always amazed to discover the full extent of the unbridled power that I possess, as a gay man). The cold truth remains that homosexuality was never reinstated as a mental disorder, notwithstanding the fact that the DSM has been revised and augmented extensively since the decision to declassify homosexuality as a mental disorder was made 36 years ago, and notwithstanding the efforts of a small but rabid minority of psychiatrists, psychologists, and other mental health professionals to remedicalize and recriminalize homosexuality.

Although some theologians and right-wing commentators maintain a distinction between homosexual sexual orientation and the physical expression of that orientation (homosexual conduct), this is, in the last analysis, a distinction without a practical difference. The so-called “sin” and the so-called “sinner” are inextricably intertwined; the so-called “sin” is a reflection of an aspect of personhood of the so-called “sinner” – entirely different from consciously chosen preferences, such as a person’s taste in clothing, food, or automobiles. Although many black Americans decry and resent comparisons between race and sexual orientation, the fact that these people dislike the comparison in no way renders it logically unavailing. Blaming a gay person for that person’s expression of his or her identity is morally obtuse, and does violence to notions of substantive fairness. Prominent psychologists, psychiatrists, and mental health professionals have concluded, almost without exception, that most gay men and lesbians are as well-adjusted and as emotionally healthy as are most heterosexuals. To the extent that gay people suffer increased rates of depression (and other emotional disorders), these problems are in fact reflections of the appalling abuse, mistreatment, and hostility directed towards gay people by American society.

Telling a gay person that one “loves the sinner” whilst “hating the sin” is analogous to telling a black person that one loves that person but hates the fact that he or she is black. Another pertinent analogy that has been invoked by scientists in the field of psychological assessment involves laterality; just as about 10% of the male population is left-handed, about 10% of men are predominantly or exclusively homosexual. The data pertaining to lesbians are not as clear-cut; many researchers have concluded that female sexuality is less clearly differentiated than male sexuality, and that female human sexuality is more fluid and malleable than male human sexuality.

The term “sexual preference” is a misnomer, and should be avoided when discussing the rights of gay people; this term implies that gay people consciously and deliberately choose with whom to fall in love, and that gay people choose to have sexual and emotional relationships with members of the same sex.

What is particularly disgusting and depressing about the attitude of homophobes is their tendency to reduce the complexities of gay relationships to the sum of a number of sex acts. Gay people are no less capable than heterosexual people of feeling love and emotional attachment – yet homophobes utterly dismiss the expression of such emotions, emphasizing only the sexual aspect of gay relationships. The “Family Research Council” (FRC) is notorious for this tendency – some time ago, the FRC referred to Elizabeth Birch’s companion as her “sex partner” when commenting on the fact that Birch and her lover had adopted a child (Birch is a prominent gay rights attorney). This crude form of biological reductionism is both insulting and dehumanizing. The Nazis invoked precisely this technique in the early stages of the Holocaust, dismissing Jewish people (as well as gay people, Gypsies, and political prisoners) as “untermensche” (lower forms of human life). By invoking this paradigm, the Nazis found it easier to insult, abuse, and ultimately attempt to exterminate an entire class of persons.

While the writer does not accuse homophobes of genocide (at the present time), it bears noting that no less a figure than Associate Justice Antonin Scalia – known for the contempt that he displays towards gay Americans – went so far as to complain about the homosexual “problem” in the State of Colorado (his dissent in Romer v. Evans, 517 U.S. 620 (1996) invoked standard and all too well known stereotypes about gay people). Scalia launched into a particularly ugly and vitriolic diatribe, the first sentence of which, through the choice of words employed, had many people wondering what could possibly have possessed him to allude (consciously or unconsciously) to the autobiography of a well-known German national, written several decades ago, in which the author described his kampf ("The Court has mistaken a Kulturkampf for a fit of spite...."). (Although Scalia was ostensibly referring to the influence of the Roman Catholic Church and German policies in relation to secularity enacted from 1871 to 1878 by Otto von Bismarck (Chancellor of the German Empire), the word "Kulturkampf" (literally meaning "culture struggle") has other connotations, and it is impossible for the writer to conclude that Scalia (whose tool, as a federal judge sitting on the highest court in the land, is the written word) did not understand or anticipate these connotations, particularly in view of the stereotypes and naked generalizations in which he indulged in the text that immediately followed his invocation of this term.)

Scalia worked himself up into a state of frenzy, accusing the Court of placing the prestige of that institution behind the proposition that "opposition to homosexuality is as reprehensible as racial or religious bias." In passages eerily reminiscent of writings and speeches all too well known to this world, Scalia inveighed against the homosexual "problem" faced by the citizens of Colorado, noting that gay men and lesbians tended "to reside in disproportionate numbers in certain communities", where they possessed "political power much greater than their numbers, both locally and statewide". He expressed outrage at the "enormous influence in American media and politics" enjoyed by gay men and lesbians, and railed against the fact that gay men and lesbians "care about homosexual rights issues much more ardently than the public at large", claiming that the perceived tendency on the part of gay Coloradans to invoke the democratic process more readily and with more vigor than their heterosexual counterparts constituted a distortion of that process in and of itself. (Does any of this sound depressingly familiar?) One wonders how it could have escaped Scalia's attention that, in a country where people vote their policy preferences into law under a "one man, one vote" system, members of any particular group of citizens can never, by definition, possess "disproportionate" political power, unless members of other groups of citizens choose to abdicate their own power. One also wonders whether Scalia would ever care to apply a similar analysis to the behavior of fundamentalist Christians, who certainly care about their issues (e.g., forcing mandatory school prayer down the throats of the rest of us, outlawing reproductive freedom for women) "much more ardently than the public at large". Perhaps one can be forgiven for harboring some degree of cynicism towards this analysis, given the selectivity of its application and the transparency of its logic.

Circuit Judge Stephen Reinhardt, sitting on the US Court of Appeals for the Ninth Circuit, eloquently exposed the false and discriminatory nature of the status versus conduct distinction as this distinction pertains to gay persons serving in the armed forces, in his dissent in Holmes v. California Army National Guard, 124 F.3d 1126 (1997). Reinhardt noted that:

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“[…] the fact that conduct may be banned does not mean that speech may be also. Certainly, an admission of prohibited conduct, although speech, is an admission of an offense and may serve as the basis for discipline. However, admitting that one is homosexual is not admitting to an offense under the newly crafted and somewhat schizoid "Don't Ask, Don't Tell" policy. For, under that policy, homosexual status – being a homosexual – is not an offense. To the contrary, the military now purports to welcome into the service individuals who are homosexuals – but only so long as they don't engage in homosexual conduct. This might appropriately be analogized to welcoming Jews to be a part of society so long as they do not attend synagogue or pray publicly or privately to God. Nevertheless, it is the policy that the President and the Congress in their collective wisdom have agreed upon.

“The proponents of the status / conduct distinction seem to believe that classifications such as homosexual and heterosexual are based on something other than sexual conduct, perhaps one's taste in art, music, literature, dress, or the pursuit of a particular, if indefinable, "life-style." This argument confuses cause and effect. What makes a person a homosexual, or a heterosexual, is the abiding desire to engage in sexual conduct with persons of the same sex, or persons of the opposite sex. It is no secret, even to federal judges, that the sexual drive is a strong one. Sex is the elementary form of human activity and expression, and it provides the basis for the most important of human relationships, rivaled only by that of parent and child. It also provides the basis for distinguishing homosexuals from heterosexuals.

“The complications regarding sexual preferences involve questions such as whether one is born with a particular orientation or acquires it, and whether one may constitutionally be forced to lead a sexless life in order to serve one's country as a member of the military. Most persons are born with a particular sexual preference and in the vast majority of cases, it is heterosexual; a minority is born with homosexual preferences. In some cases, it may not be so clear what one's preferences are; in some cases there may be ambivalence; in some a preference for both sexes; and in some a complete lack of interest in sexual conduct. (The latter would appear to be the smallest group.) But the idea that persons should be compelled to surrender entirely the right to engage in sexual conduct if they wish to serve in the armed forces would seem to me clearly to conflict with the Constitution and in particular with substantive due process. Nevertheless, as I have acknowledged, that is not the current state of the law and I am bound to follow a view contrary to my own, pending a repudiation of Bowers by the Court or its issuance of an opinion construing Bowers to mean something other than what its authors intended.” [emphasis added]

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(Fortunately, the obscene decision to which Reinhardt referred throughout his dissent (Bowers v. Hardwick, 478 U.S. 186 (1986)) was explicitly and bluntly overruled by the US Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003). This reflects a sea change in the manner in which the federal judiciary treats gay Americans; Bowers upheld anti-gay state “sodomy” statutes, which were challenged as being violative of the substantive component of the Fourteenth Amendment’s Due Process Clause. The Lawrence Court implicitly apologized to the gay community for the manner in which it had demeaned and insulted gay Americans in Bowers, acknowledging that it had framed the constitutional issue at stake in that case far too narrowly. In overturning Bowers, the Court acknowledged that gay persons have every right to sexual privacy, and that the government has no business interfering with that right. The US Courts of Appeals for the First and Ninth Circuits recently analyzed Lawrence and concluded that the right to intimate sexual conduct between members of the same sex is afforded substantial constitutional protection by Lawrence, of a much higher order than that associated with traditional rational basis review.)

The lies told about gay people are particularly ugly. There is no truth whatsoever to the old canard that gay men were abused in childhood, or that overly dominant mothers are “responsible” for the sexual orientation of gay sons. These old “blame the mother” lies were bandied about up until the 1970s, when mental health professionals acknowledged that such theories were, for want of a better description, fanciful inventions. If overly protective mothers are responsible for male homosexuality, the percentage of the male population that is exclusively or predominantly gay would be much higher than current estimates (which range from 2% to 10%, depending on the manner in which homosexual orientation is defined and measured).

Social and cultural conservatives make much of the fact that the origins of homosexual sexual orientation have not yet been proved to have their roots in biology or genetics. Because no definitive proof has yet been adduced to the effect that homosexuality is biologically or genetically “hard-wired”, it must be assumed (according to this line of reasoning) that homosexuality is chosen. The logical fallacy undergirding such thinking is so egregious as to disinvite comment. Many human characteristics that were once assumed to have no basis in biology or genetics (laterality is once again a good example) are now known to have a biological basis. The frontal lobes of the human brain mediate psychological and behavioural attributes such as creativity, impulse control, the exercise of moral judgment, the sequencing of appropriate behavior, and social interaction. The fact that this was neither known nor understood prior to the second half of the 20th century does not rob current understanding of brain organization of its legitimacy, just as the fact that penicillin was not known to have antibiotic properties prior to the second half of the 20th century does not rob current understanding of the antibiotic properties of this drug of its legitimacy. It is entirely possible, if not probable, that male homosexuality has a strong genetic component; the fact that this component has not yet been identified definitively does not foreclose the future identification of a genetic basis of this phenomenon.

Indeed, the research data that does exist strongly supports the hypothesis that male homosexuality has a genetic component. The most compelling evidence of this component exists in the form of twin studies; in such studies, the sexual orientations of identical twins are compared, and the concordance rates for homosexuality in cotwin pairs are contrasted with those in fraternal twins and non-twin siblings. Psychologists Bailey and Pillard (of Northwestern University, Illinois) conducted such a study in 1991, and concluded that the concordance rate for homosexuality in monozygotic cotwins was 52%, as opposed to 22% of dizygotic (fraternal) cotwins, and 11% in adoptive brothers (the concordance rate for nontwin siblings was only 9.2%). These highly respected researchers, known for their caution in interpreting such contentious data, concluded that “[h]eritabilities were substantial under a wide range of assumptions about the population base rate of homosexuality and ascertainment bias.” (In other words, they concluded that there is strong evidence that male homosexuality is at least in part genetically determined, regardless of cultural bias and difficulties in determining the relative size of the gay male population.) The results of this study were written up in the highly regarded, peer-reviewed journal “Archives of General Psychiatry” (March 1993). Bailey and Pillard then studied lesbian twins and siblings, and obtained strikingly similar results, further reinforcing their conclusions.

Even more dramatic results were obtained in a 1952 study by Franz Kallman, who reported that 100% of the identical twins in his study were concordant for homosexual sexual orientation (in other words, the identical twin of every gay subject in his study was also gay). Differences between the Kallman data and the Bailey and Pillard data may well have been artifacts relating to the manner in which homosexual sexual orientation was assessed across the two studies, or artifacts relating to the manner in which subjects were selected across these studies.

These two studies are by no means the only studies that have examined sexual orientation as a function of genetics. Bailey conducted a larger study involving 5,000 subjects selected from the Australian Twin Registry, and arrived at similar results. In short, strong evidence exists to support the theory that gay sexual orientation is at least partially genetic in its origins.

(Whether or not gay people should have to prove that homosexuality is not a matter of conscious moral choice is another issue. Certainly, it has been established that race and ethnicity are fimly rooted in genetics and biology – but this has in no way diminished the extent and depth of racism and ethnic stereotyping in American society. Should gay persons succeed in proving the existence of a genetic component to homosexuality, it is entirely possible – if not probable – that the hard right will announce that the "etiology" of homosexuality has been discovered, and that attempts will then be made to remedicalize and recriminalize homosexuality. Furthermore, religion is clearly a chosen behavior; yet religious belief is granted substantial constitutional protection by our political system, notwithstanding the fact that religious beliefs are chosen.)

Homophobes who adduce their religious beliefs as justification for their abusive, cruel, and discriminatory attempts to deprive gay Americans of the rights and privileges that they take for granted fly in the face of venerated constitutional principles such as the equal protection of the laws, and the wall of separation between church and state.

We do not live in a theocracy. We live in a constitutional democracy, in which the rights of minorities are protected by irrepealable constitutional law. Attempts to circumvent the law by making reference to religious dogma have no place in a society in which the liberty interests of all citizens are protected by such law. The US Supreme Court recognized this fundamental truth in Lawrence (supra), holding that “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom”.

Long may those words stand for the proposition that religious bigotry cannot, and will not, undergird law and public policy in a free society.

PHILIP CHANDLER

Mormons Meddle and Destroy Marriage...

Almost four of every five dollars contributed to the campaign to eliminate gay marriage in the State of California was sent into this campaign from Mormons based in Utah. In total, the Church of Jesus Christ of Latter-day Saints (LDS) contributed more than 19 million dollars to this campaign. A prominent blogger summed up the actions of the Mormons with the following observation: "They just took marriage away from 20,000 couples and made their children bastards.”

Now the LDS has the effrontery – the unmitigated gall – to call upon the gay community for "healing" and “respect” following passage of Proposition 8 in California. Hell will freeze over before this happens.

Consider the following:

On May 15, 2008, the California Supreme Court handed down its decision in in re Marriage Cases, S147999. The court refused to stay its decision until the November 2008 elections, and this decision took effect on June 16, 2008. In this decision, the state high court held that all classifications on the basis of sexual orientation are "suspect," and mandated that gay persons be able to marry their spouses on the same terms as applies to heterosexual persons. Tens of thousands of gay couples obtained marriage licenses and were married before the elections of November 4, 2008. Because California has no residency requirement for marriage, and does not require that marriages performed in California be valid in the home states of non-residents, many couples travelled to California to exchange and solemnize their vows. Proposition 8 was enacted by a narrow margin of about 52% to 48%, and has the effect of overriding the state high court’s decision, thus prohibiting the recognition of gay marriages in the State of California.

California continues to offer “domestic partnerships” to gay couples; these partnerships are similar to “civil unions” offered by states such as Vermont and New Jersey, and grant to same-sex couples all of the state-level rights and privileges of marriage, in areas such as inheritance, insurance, state income tax, hospital visitation rights, etc.

Neither gay marriages nor domestic partnerships offer to gay couples the roughly 1,138 rights and benefits afforded heterosexual married couples under federal law, due to the restrictions on gay marriage imposed by the so-called “Defense of Marriage Act” (DOMA) of 1996. This measure prohibits the treatment of gay relationships as marriages for any purpose by the US federal government, even if such relationships are concluded or recognized as marriages by one or more of the states.

Some explanation of legal concepts is required in order to understand the meaning of the state high court’s determination.

Ordinarily, a statute that creates a classification (e.g., a statute that creates different classes of people, such as a statute that defines and provides for the punishment of murderers) enjoys the presumption of constitutionality. This is so because we live in a constitutional democracy. The courts generally accept the proposition that even improvident decisions will eventually be rectified by the democratic process. However, some forms of discrimination are so invidious and so destructive that any statute that creates classifications of this type (so-called “suspect” classifications) is subjected to "strict scrutiny." Strict scrutiny turns the presumption of constitutionality on its head – under this standard of review, a statute is presumed to be unconstitutional until the state proves, beyond a reasonable doubt, that the statute is not unconstitutional. Statutes that create racial classifications are the most well known statutes that proceed along suspect lines. It is widely recognized and understood that race is a characteristic that bears no relationship to the ability of people to contribute to society. Furthermore, racial minorities have been subjected to a long history of purposeful discrimination, and racial minorities have suffered a history of relative political powerlessness. This discrimination is triggered by a characteristic that is “immutable” (a person’s race cannot be changed).

Not all suspect classes involve “immutable” characteristics. The US Supreme Court recognizes four classifications that are suspect – race, alienage, national origin, and religion. Clearly, religion is not immutable; people can and do convert from one religion to another. Alienage is also a characteristic that can be changed; a resident alien can become a US citizen, and under some circumstances, a US citizen may surrender his or her citizenship and become an alien. Any classification that proceeds along suspect lines is presumed to be unconstitutional; when the state defends a statute that proceeds along suspect lines or that infringes on a “fundamental” constitutional right, the burden falls on the state to prove that such statutes serve a "compelling state interest" and that such statutes are "narrowly tailored" so as to promote that interest in the “least restrictive” manner possible (in terms of infringing on the rights of the group in question). Stated differently, the statute must promote a compelling state interest, and must sweep no more broadly than is absolutely necessary to promote the interest in question. The California Supreme Court recognizes additional suspect classes – sex has long been considered by the California state courts to be a suspect classification, and in handing down in re Marriage Cases, supra, the state supreme court held that classifications on the basis of sexual orientation are also suspect. Furthermore, any statute that infringes a "fundamental right" is automatically subjected to strict scrutiny, regardless of whether the group impacted by the statute in question is considered to be a suspect class. For example, a statute that infringes on First Amendment rights is a statute that infringes on a fundamental right; it will be subjected to strict scrutiny regardless of whether or not the group impacted by the statute in question comprises a suspect class (see Chicago v. Morales, 527 U.S. 41 (1999), in which case the US Supreme Court invalidated Chicago’s “Gang Congregation Ordinance,” declaring this ordinance to be facially unconstitutional).

(A state supreme court, interpreting a state constitution, can grant to its citizens rights over and above the rights recognized in federal equal protection jurisprudence; this is a bedrock principle in our system of judicial federalism. Thus, although the US Supreme Court has been very reluctant to expand the number of classifications considered to be suspect, many state supreme courts have adduced additional suspect classes. The California Supreme Court, for example, considers sex to be a suspect classification, whereas the US Supreme Court still considers sex to be only a "quasi-suspect" classification. Under California case law, a statute will only survive strict scrutiny if the state proves that the statute promotes a compelling state interest and is necessary for the promotion of that state interest. A quasi-suspect classification is subjected to a slightly less demanding standard of review than strict scrutiny, referred to as "quasi-strict scrutiny." Under this standard of judicial review, the burden is again placed on the state, which must prove that the statute in question promotes an important state interest and is substantially related to the promotion of that interest. In Frontiero v. Richardson, 411 U.S. 677 (1973), the US Supreme Court articulated this standard of review as applied to statutes that classify on the basis of sex. The Court reformulated this standard of review in United States v. Virginia, 518 U.S. 515 (1996), holding that classifications on the basis of sex can only be sustained in the presence of an "exceedingly persuasive justification.”)

The California Supreme Court became the second state appellate court to conclude that classifications on the basis of sexual orientation are suspect (the Hawaii Supreme Court declared such classifications to be suspect in Baehr v. Miike, 87 Haw. 34, 950 P.2d 1234 (1997), noting that the framers of the state constitution in 1978 had expressly intended that a proscription against sexual orientation discrimination be subsumed under the textual proscription against discrimination on the basis of sex). The California Supreme Court is perhaps the most influential of the state high courts, and this court’s holding that sexual orientation is a suspect classification was not overturned by Proposition 8, and cannot be overturned by any act of the people or of the legislature.

In finding that the California state constitution grants to gay persons the same right to marry as that which is enjoyed by heterosexuals, the court held 1) that sexual orientation is a suspect classification, and 2) that marriage is a fundamental right. Sexual orientation bears no relationship to the ability of persons to contribute to society. Furthermore, gay persons have suffered a history of invidious discrimination based on their sexual orientation, and it is beyond doubt that sexual orientation is either immutable, or changeable only at unacceptable personal cost to members of the class in question. Notwithstanding the ugly and impassioned rant of US Supreme Court Justice Antonin Scalia in his dissent in Romer v. Evans, 517 U.S. 620 (1996) (in which dissent Scalia inveighed against the homosexual “problem” in the State of Colorado, asserting that gay persons possess “political power much greater than their numbers, both locally and statewide” and that gay persons possess “enormous influence in American media and politics”), gay persons are also relatively politically powerless. There are only two openly gay members of Congress; there has never been an openly gay person serving in a cabinet-level position; there has never been an openly gay person sitting on the US Supreme Court or on any of the US Courts of Appeals; and passage of Proposition 8 reveals, chillingly, that even with the support of Hollywood celebrities such as Brad Pitt, Angelina Jolie, and Steven Spielberg, gay persons cannot protect even a right so basic as their right to marry in what many analysts consider to be the most liberal state in the country.

Proposition 8 therefore serves to strip a suspect class of a fundamental right – something that is utterly impermissible under both due process jurisprudence and equal protection jurisprudence. It is bad enough that Proposition 8 strips an identifiable group of a fundamental right; here, the constitutional infirmity is compounded by the fact that the group so deprived also constitutes a suspect class. Regardless of the emotions involved, and regardless of whether or not jurists accept the morality of gay marriage, it is crucial to bear in mind at all times that, from a legal standpoint, Proposition 8 is no different from a measure that selectively withdraws the right to marry from black people only, or from Catholics only. Were any measures to be passed that strip the right to marry from either of these groups, there would quite understandably be widespread public outrage.

Any attempt to enforce Proposition 8 must be, and will be, met with unwavering resistance by the gay and lesbian community, both in California and across the nation. This measure will not be permitted to become law without vigorous opposition. At the time of writing, the mayor of San Francisco continues to issue marriage licenses to gay couples who wish to marry. The state Attorney General, Jerry Brown, insists that existing gay marriages will remain legal, and is also seeking that the state high court find Proposition 8 to be unconstitutional. Three lawsuits have already been filed in California state court, seeking a writ of mandate to enjoin enforcement of Proposition 8 and to instruct the state to continue to issue marriage licenses to gay couples until a full trial on the merits can be held to determine whether or not Proposition 8 is constitutional. These lawsuits assert that Proposition 8 works a profound change to the state constitution, striking at the heart of the equal protection provisions mandated by that constitution; if such a change is to be countenanced at all, it must be undertaken pursuant to the more deliberative constitutional revision process articulated in Article VXIII of the state constitution, which requires more than a mere majority of votes and which requires ratification by the state legislature. The brief submitted by the petitioners seeking a writ of mandate from the California Supreme Court is analytically brilliant, and the writer is hopeful that this brief will succeed in convincing the California Supreme Court that Proposition 8 was enacted in violation of Article XVIII of the California state constitution. The chief argument raised by the petitioners is that Proposition 8 works a change to the California constitution so fundamental as to require the more deliberative approach specified by Article XVIII. Specifically, Proposition 8 deprives one, and only one, class of Californians of a right deemed by the courts to be "fundamental". Furthermore, Proposition 8 proceeds along facially suspect lines. In short, Proposition 8 attempts to deprive a suspect class of a fundamental right, in violation of the underlying principles of due process and equality enshrined in the California state constitution. If left to stand, the amendment of the state constitution by Proposition 8 could be followed by subsequent amendments to the state constitution withdrawing additional fundamental rights from a suspect class in piecemeal fashion – turning the principle of equal protection on its head. The petitioners cited Pastor Niemoller's famous quote: "In Germany, they first came for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me – and by that time no one was left to speak up." If left to stand, Proposition 8 would make it possible for other fundamental rights to be withdrawn from gay persons, or from members of any other group identified along suspect lines. By eliminating the requirement of equal protection from such a minority, Proposition 8 would remove an essential structural check on the exercise of majoritarian power. Had Proposition 8 sought to ban all marriages in the State of California, principles of equal protection would not have been offended; however, the selective identification of a group along suspect lines, followed by the withdrawal from that group of a fundamental right, is inconsistent with the constitution's mandate of equal protection. The petitioners cited Romer v. Evans, supra (in which the US Supreme Court invalidated a Colorado state constitutional amendment singling out gay persons and depriving them of protection from discrimination at all levels, in both the public and the private sectors) as authority for their position. When Romer was handed down in 1996, gay persons had not been identified as a suspect class by any state or federal appellate court; now, gay persons are considered to be a suspect class as a matter of law in the States of California and Hawaii. (Gay persons are considered to be a quasi-suspect class by the Connecticut Supreme Court, which handed down a decision legalizing gay marriage in that state on October 28, 2008 (Kerrigan v. Commissioner of Public Health, SC17716)).

Constitutional amendments imply "...an addition or changes within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed." This cannot be said of Proposition 8, which strikes at the heart of equal protection and which, if allowed to stand, would strip the state courts of their crucial role in preserving the rights of disfavored minorities. Changing the bedrock foundations of the state constitution must be done through the revision process, not the amendment process. In previous cases where the California Supreme Court has affirmed the modification of the constitution through the amendment process at the ballot, the substance of these amendments has never targeted a suspect class, or attempted to withdraw from that class a fundamental right. There is a profound difference between a measure intended to deprive all Californians of the right to marriage, and a measure intended to deprive only Catholics or Moslems of the right to marriage. Sexual orientation has been placed on the same plane as race and religion for the purposes of state equal protection analysis, rendering the deprivation of the right to marry from this group analogous to the deprivation of the right to marry from only Catholics, or only Moslems. It is the responsibility of the judiciary to enforce such principles as equal protection of the laws. The importance of the courts, in terms of their role in enforcing such principles, cannot be overstated. Proposition 8 would strike at heart of the courts' ability to exercise their essential constitutional authority to protect minorities from overreaching by majorities. While the legislature may, under some circumstances, eliminate a right for all Californians, it may not deprive a particular disfavored group, and only that particular group, of a fundamental right. Furthermore, Proposition 8 would also strike at the separation of powers doctrine, which requires that the courts employ heightened scrutiny under such circumstances. The key analogy drawn by the plaintiffs demonstrates just how pernicious this measure would be were it to be allowed to operate. Substitute black persons for gay persons, and you would again have a measure that infringes a fundamental constitutional right and that proceeds along suspect lines. Such a measure would never be permitted to take effect following the constitutional amendment procedure; if allowed to take effect at all (which is highly improbable), it could only do so following the deliberative process involved in a constitutional revision. For the purposes of illustration, this analogy is flawless. Both sex and race are suspect classes in California state constitutional jurisprudence, and the withdrawal of marriage from black persons is analogous to the withdrawal of marriage from gay persons. Classifications premised on sexual orientation are suspect, just as classifications premised on race are suspect. There is no hierarchy of suspectness; a suspect class is a suspect class. No suspect class is "more suspect" than any other suspect class. Thus, Proposition 8 is as offensive as would be a similar measure that singled out black people and prevented them from marrying. To take effect, such a measure would have to flow from the deliberative process associated with constitutional revisions, not from the simple majoritarian vote required for constitutional amendments (even then, such a measure would almost certainly run afoul of equal protection considerations). If one such measure, eliminating a fundamental right as enjoyed by a suspect class, is permitted to stand, then additional measures that strip away fundamental rights from this class must necessarily be permitted to stand. This would lead the state down the road identified by Pastor Niemoller in his prescient and poetic observation. Granting the writ of mandate would not have a deleterious impact on the status quo; to the contrary, it would permit the continued enjoyment of the right to marry by both gay and heterosexual couples. The state would suffer no irreparable harm should the court grant the writ. Heterosexual couples would remain free to marry should the court grant the writ. Conversely, failure to issue the writ would work irreparable harm on gay couples seeking marriage licenses. It is unfortunate that this issue has been tossed back to the state supreme court. Should the court agree that the amendment violates the procedure established by Article XVIII for constitutional revisions, we can expect loud and indignant braying from religious and social conservatives, and we will doubtless have to suffer outraged, sputtering accusations alleging interference with "the will of the people". What these persons fail to grasp is the fact that it is the duty of the courts to protect suspect classes with special vigilance. Should the court grant the writ, we will almost certainly prevail should the hard right attempt to ram this change through by using the constitutional revision process (which requires approval by a supermajority of the state legislature before the matter can proceed). This is therefore a crucial legal battle.

The LDS pumped literally millions of dollars into the State of California in support of Proposition 8. Leaders of the LDS now call upon the gay community to begin the healing process. The audacity of this demand is beyond belief. This religious sect reached out and tampered with the fundamental right of gay persons to marry in another state – now, this religious sect calls upon the victims of this political meddling to make peace with those who worked this injustice on the gay community and inscribed naked discrimination into the highest law of the state.

Some members of the LDS refer to gay people as "sore losers". The irony here is that the Mormons have been the target of invidious discrimination on several fronts (including marriage) in their history. Now they stand front and center in their attack on a group of law-abiding citizens who have done absolutely nothing to harm them – and they call on members of this group to accept this result and to "begin the healing process". I do not speak for the entire gay community – but I know that I speak for a sizeable number of gay persons when I tell leaders of this religion that we will be back, just two years from now, with another ballot initiative to restore the right to marry to gay Californians. There is precious little room in my heart for healing or forgiveness of those who forced their religious views upon our community. I will not roll over and accept such shabby treatment from any religious sect that does not appreciate and abide by the concept of separation of church and state.

They can rot.

Already, gay rights groups are calling for a boycott of Utah. This state’s tourism industry, and the star-studded Sundance Film Festival, are being targeted for a boycott by bloggers, gay rights activists, and others seeking to punish the Mormon Church for its aggressive promotion of California's ban on gay marriage. Tourism brings in six billion dollars annually, with world-class skiing, a spectacular red rock country, and the film festival founded by Robert Redford, among other popular tourist venues. The LDS encouraged its members to press for the passage of Proposition 8 by volunteering both time and money for the campaign. Thousands of Mormons worked as grass-roots volunteers, bringing in a total of almost 20 million dollars. Polls show that Proposition 8 was failing until the Mormons stepped in with their money and political clout. Outspoken blogger and gay rights activist, John Aravosis, did not mince words with the following declaration: "The main focus is going to be going after the Utah brand. At this point, honestly, we're going to destroy the Utah brand. It is a hate state."

This may sound like an idle, or impotent, threat – but Aravosis is known for leading a successful and dramatic campaign against Dr. Laura Schlessinger’s TV show following her intemperate and ugly comments about gay Americans, and against Ford and Microsoft for their positions on gay rights. The Los Angeles Gay and Lesbian Center has mounted an effort to overturn Proposition 8, sending a postcard to the Mormon church president with each contribution made. Aravosis considers California to be the victim, and the Mormons to be the persecutors. Protests and rallies continue to take place in California, notwithstanding passage of the amendment; many gay activists insist that demonstrations will continue until Proposition 8 is overturned.

"We had won this until they swept in. ... We need to send a message to Utah that they need to stop trying to inflict their way of life on every other state,” Aravosis asserts.

To Aravosis – long life, and success!

PHILIP CHANDLER

Victory in Connecticut!

On Friday, October 10, 2008, the Connecticut Supreme Court issued an analytically rich, eloquent, intricate, and detailed opinion (Kerrigan v. Commissioner of Public Health, Docket No. SC17716) holding that the prohibition of gay marriage violates the equal protection provisions of the state constitution. It should be noted at the outset that this court interpreted the state constitution, not the US Constitution; this is crucial, insofar as a state supreme court opinion resting entirely on state constitutional considerations may not be reviewed or reversed by the US Supreme Court (this is a well established principle of our judicial federalism).

What follows is a detailed analysis of the state high court decision, rendering this post lengthy and somewhat technical.

In reaching the conclusion that the prohibition of gay marriage violated the equal protection clause, the state supreme court held that gay men and lesbians constitute a "quasi-suspect class" for the purposes of equal protection analysis. The court followed principles outlined in a landmark case (State v. Geisler, 222 Con. 672, 685, 610 A.2d 1225 (1992)) to construe the contours of the state constitution, examining 1) the text of the constitutional provisions at issue, 2) holdings and dicta of the State Supreme Court and of the Appellate Court, 3) persuasive and relevant federal precedent, 4) persuasive and relevant sister state court decisions, 5) the history of the operative constitutional provisions, including debates of the framers, and 6) contemporary economic and sociological considerations.

The term “suspect class” is employed by jurists to describe classes of persons entitled to a heightened level of protection when challenging a statute (or other form of legislative enactment) or executive policy on constitutional grounds. The Fourteenth Amendment was one of three Amendments enacted in the wake of the Civil War; this Amendment was crafted shortly after the Civil War ended. Section 1 of the Fourteenth Amendment includes three Clauses: the Due Process Clause, the Equal Protection Clause, and the Privileges or Immunities Clause. The Equal Protection Clause mandates that no state “shall deny to any person within its jurisdiction the equal protection of the laws.” The framers of the Equal Protection Clause wished to stamp out the invidious forms of racial discrimination that remained following the abolition of slavery; this context must be considered when adjudicating challenges to legislation on equal protection grounds. The Connecticut state constitution contains a similar guarantee, codified at article first, Section 1 (“All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”) and at article first, Section 20 (as amended by article 5 and article 21) (“No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”).

In federal constitutional jurisprudence, the gravamen of an equal protection challenge almost always lies in the assertion that two groups of people who are similarly situated in relation to the challenged legislation are treated differently, with resultant adverse impact to members of one of the groups in question (see Heller v. Doe, 509 U.S. 312 (1993)). In the majority of cases dealing with social and economic legislation, the federal courts apply the “rational basis” standard of review. With the exception of statutes that infringe on “fundamental” constitutional rights, and statutes that create “suspect” or “quasi-suspect” classifications, statutes generally enjoy the presumption of constitutionality (a statute is presumed to be constitutional until it is proved to be unconstitutional beyond a reasonable doubt (State v. McKenzie-Adams, 281 Con. 486, 500, 915 A.2d 822 (2007))). The rational basis standard of review is consistent with the presumption of constitutionality. When this standard is applied, the burden falls squarely on the plaintiff, who must demonstrate that the statute in question is not rationally related to a legitimate state interest. This standard of review has been referred to as a “paradigm of judicial restraint” (see FCC v. Beach Communications, Inc., 508 U.S. 307 (1993)) due to its highly deferential nature. Provided the state can posit a rational relationship to a legitimate state interest, the statute will be sustained in the face of constitutional attack. The reviewing court can reach out, independently, and posit even post hoc justifications for the challenged statute.

This standard of review is not completely toothless, however. In City of Cleburne, Texas v. Cleburne Living Ctr., Inc.., 473 U.S. 432 (1985), the Court struck down the City Council’s refusal to issue a “special use” permit to a home for mentally retarded, holding that there was no rational basis for requiring this permit, and noting that the City Council’s requirement of a “special use” permit appeared to rest on “irrational prejudice” against the mentally retarded.

In United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973), the Court struck down a prohibition against granting food stamps to any household containing an individual who is unrelated to any other household member (this measure was intended to discourage "hippies" from forming communal living relationships). In this decision, the Court held that “a bare…desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

In Romer v. Evans, 517 U.S. 620 (1996), the US Supreme Court struck down an amendment (“Amendment 2”) to the Colorado state constitution that “fenced out” gay men and lesbians, and withdrew from this class of persons, and this class of persons alone, the right to petition the state legislature for redress of grievances (Amendment 2 repealed existing anti-discrimination ordinances to the extent that they protected gay people from discrimination at the hands of heterosexual people, and forbad the future enactment of any such measures). Although the Court employed language typically associated with traditional rational basis review, a three-judge panel of the US Court of Appeals for the Ninth Circuit recently noted that the Court appeared to have applied a much higher standard of review (see Witt v. Department of the Air Force, 527 F.3d 806, 828 (9th Cir. 2008), May 21, 2008). Several prominent jurists have made the same observation. Regardless of the level of scrutiny actually employed, the Romer Court cited Moreno with approval, holding that Amendment 2 was so broad in its scope as to give rise, inevitably, to the inference that this measure was intended to reflect “animus” towards gay persons. The Court reiterated its holding that a bare desire to inflict harm upon members of a politically unpopular group can never constitute a legitimate state interest, striking down Amendment 2 in a 6 -- 3 opinion that was laced with strong and stark language.

The Connecticut Supreme Court first determined, as a matter of law, that “civil unions” (which were created by the state legislature in 2005) are not the legal equivalent of marriages, holding that this statutory arrangement singled out gay relationships and implicitly relegated them to an inferior status, “in essence, declaring them to be unworthy of the institution of marriage.” Gay activists have repeatedly maintained that this is indeed so – while civil unions may grant to gay couples all of the substantive benefits and protections of heterosexual marriage, “the message [sent by the legislature] is that what same-sex couples have is not as important as or as significant as “real” marriage, that such lesser relationships cannot have the name of marriage.” The court agreed with the plaintiffs that “[m]aintaining a second-class citizen status for same-sex couples by excluding them from the institution of civil marriage is the constitutional infirmity at issue.” The court compared civil unions to the “separate but equal” doctrine that animated the education of black versus white schoolchildren prior to the US Supreme Court’s landmark decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), and rejected the contention that civil unions are the constitutional equivalent of marriage (whilst recognizing the “truly laudable” efforts of the state legislature to grant gay couples the substantive rights of marriage).

The court then articulated a precept that is fundamental to our system of judicial federalism – that it is “beyond debate that federal constitutional law...establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” [emphasis added]. In short, the US Constitution sets a floor, but not a ceiling, to the exercise of individual rights; many state constitutions are more generous, either by their terms or as construed by state high courts, than is the US Constitution in terms of affording their respective citizens the exercise of individual rights. The court referenced several cases in which the Connecticut constitution had been interpreted as being more generous than the US Constitution in terms of granting Connecticut citizens individual rights (e.g., State v. Morales, 232 Conn. 707, 716, 657 A.2d 585 (1995); Ramos v. Vernon, 254 Conn. 799, 827, 761 A.2d 705 (2000)). The court made it clear that in the light of this principle, there may be times when the court will employ the same analytical approach as that adopted by the federal courts, but yield entirely different results. Furthermore, in tones that would cause ultra-conservative jurists such as US Supreme Court Associate Justices Antonin Scalia and Clarence Thomas to suffer from attacks of dyspepsia and apoplexy, the court held that “[it] must interpret the [state] constitution in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, may lose its original meaning” [emphasis added] and that the state constitution is “…intended to endure for ages to come…and, consequently, to be adapted to the various crises of human affairs” (cited from McCulloch v. Maryland, 17 U.S. 316 (1819)). The court expanded on this, holding that “the Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of [its] citizens” (cited from State v. Dukes, 209 Conn. 98, 114-15, 547 A.2d 10 (1988)).

The Connecticut Supreme Court first concluded that gay persons in committed relationships who wished to marry are “similarly situated” to heterosexual persons in committed relationships who wished to marry, thereby granting gay persons the requisite standing to mount an equal protection challenge to the prohibition of gay marriages. In a footnote that captured the essence of the constitutional challenge (see footnote 15), the court asserted that “[its members] know that people of the same sex often love one another with the same passion as people of different sexes do and that they want as much as heterosexuals to have the benefits and experience of the married state. If we allow a heterosexual couple access to that wonderful resource but deny it to a homosexual couple, we make it possible for one pair but not the other to realize what they both believe to be an important value in their lives” (cited from R. Dworkin, “Three Questions for America,” N.Y. Review of Books, September 21, 2006, pp. 24, 30).

Having established that gay couples may mount a cognizable equal protection challenge to the prohibition of gay marriages, the court discussed the standard of review that should be applied to the challenged legislation. As mentioned above, statutes that neither burden a “fundamental” constitutional right nor draw “suspect” classifications will be sustained, provided the state (or the reviewing court) posits a legitimate state interest and provided the legislation in question is rationally related to the promotion of that interest. However, any statute that draws a “suspect” or "quasi-suspect" classification, or that infringes a “fundamental” right, will be subjected to “strict scrutiny.”

Strict scrutiny is a much more searching level of judicial review than rational basis review. When a reviewing court subjects challenged legislation to strict scrutiny, the presumption of constitutionality ceases to exist; in fact, the statute in question is presumed to be unconstitutional until and unless the state proves, beyond a reasonable doubt, that the legislation in question is not unconstitutional. The burden shifts from the plaintiff to the state, which has to prove that the statute in question promotes a “compelling state interest,” and that the statute in question is “narrowly tailored” so as to promote that interest in the least restrictive manner possible (insofar as the statute burdens the suspect class or infringes on a fundamental right). That is to say, the statute in question must promote a compelling state interest, and must sweep no more broadly than is absolutely necessary to promote that compelling state interest. This standard of review stands in stark contrast to the deferential rational basis standard, and it is therefore crucial to limit application of this standard to those circumstances which are consonant with the intent of the framers of the respective constitutions. Some constitutional scholars take an extreme position, and argue that this standard of review should only be applied (in equal protection challenges) when the legislation creates a racial classification. While this position is consistent with the observation that the Equal Protection Clause of the Fourteenth Amendment was framed in the immediate aftermath of the Civil War, it should always be kept in mind that the framers of this Clause made it clear that they intended this Clause to afford protection to other minorities too. Furthermore, the text of the Equal Protection Clause contains no limitations; this Clause affords the equal protection of the laws to all persons (no state “shall deny to any person within its jurisdiction the equal protection of the laws” [emphasis added]).

The US Supreme Court has recognized three suspect classifications – race, national origin, and alienage (Heller, supra). It is important to note that the manner in which equal protection challenges are adjudicated (including the standards of review that are applicable) is not prescribed by the US Constitution, and that the US Constitution does not specifically identify suspect classifications or suspect classes (a suspect class is the class drawn by a suspect classification). The Connecticut constitution, on the other hand, identifies eight inherently suspect classifications set forth in article first, Section 20 (as amended) (religion, race, color, ancestry, national origin, sex, physical disability, and mental disability). Because members of these classes have been deemed to be “especially subject to discrimination,” their rights “are protected by requiring encroachment on [those] rights to pass a strict scrutiny test.”

In addition to the rational basis standard and the strict scrutiny standard, the US Supreme Court has recognized the existence of an intermediate level of scrutiny that lies between the extremes of rational basis review and strict scrutiny (see Clark v. Jeter, 486 U.S. 456 (1988)). This standard of review, referred to as “quasi-strict scrutiny” or “intermediate level scrutiny,” has been reserved by the US Supreme Court for classifications on the basis of sex and classifications on the basis of illegitimacy. Such classifications are referred to as “quasi-suspect” classifications. Such classifications may be sustained only if the state demonstrates that the challenged legislation promotes an important state interest and is substantially related to the promotion of that interest (see Frontiero v. Richardson, 411 U.S. 677 (1973)). More recently, the US Supreme Court reformulated this standard of review by holding that, in the context of gender discrimination, the classification may only be sustained in the face of an “exceedingly persuasive justification” (see United States v. Virginia, 518 U.S. 515 (1996)). The Court further held that the justification in question “must be genuine, not hypothesized or invented post hoc in response to litigation…and it must not rely upon overbroad generalizations about the different talents, capacities, or preferences of males and females.” Under quasi-strict scrutiny, the burden again falls on the state to demonstrate that the legislation in question meets these criteria.

The state argued that because article first, section 20 (as amended) of the state constitution expressly prohibits discrimination against eight enumerated classes, and because sexual orientation is not one of the eight enumerated classes, no other group is entitled to heightened protection under the equal protection provisions of the state constitution. The court rejected this assertion, because it is inconsistent with case law in which the court has expressed approval of the three-tiered methodology traditionally employed for the purposes of the equal protection provisions of the state constitution (e.g., Carofano v. Bridgeport, 196 Conn. 623, 495 A.2d 1011 (1985); Keogh v. Bridgeport, 187 Conn. 53, 66-67, 444 A.2d 225 (1982)). The court also held that, although the omission of sexual orientation from the list of classifications enumerated by article first, section 20 (as amended) is a relevant consideration, it is not dispositive of the issue. The court reflected on the history surrounding the adoption of this section of the state constitution, noting that its drafters intended that provision to embody “the very strongest human rights principle that this convention can put forth to the people of Connecticut,” and concluding that, in accordance with that purpose, that provision should be read expansively. The court emphatically rejected the proposition that the language of the constitution limited new rights, noting that “rights of individuals have developed and have changed from time to time” (citing from remarks of former US Representative Chase Going Woodhouse). The court also asserted that, even if it were to assume, arguendo, that the groups enumerated in article first, section 20 (as amended) were intended to constitute an exhaustive list of suspect classes, the plaintiffs would not be barred from recognition as a quasi-suspect class, because these two classes are distinct and separate from one another. Of great significance was the observation that, under the state’s view, “only those classes that have marshalled the political will and popular support to secure a constitutional amendment in their favor” would be recognized as a suspect class – a result totally inconsistent with the rationale underlying both state and federal equal protection considerations.

The court then turned to an examination of the criteria that must be considered in determining whether recognition as a quasi-suspect class is warranted. The court noted that the US Supreme Court has consistently identified two factors that must be met, for the purpose of the federal constitution, in determining whether recognition as a quasi-suspect class is warranted. These factors are 1) the group has suffered a history of invidious discrimination, and 2) the characteristics that distinguish the group’s members must bear “no relation to their ability to perform or contribute to society” (see United States v. Virginia, supra; Frontiero v. Richardson, supra; Massachusetts Board of Retirement v. Murgia, 427 U.S. 327 (1976)). The US Supreme Court has also cited two other factors that may, on a case by case basis, be relevant to determining whether statutory provisions pertaining to a particular group are subject to heightened scrutiny. These additional two considerations are 1) the characteristic that defines the members of the class as a discrete group must be immutable or otherwise not within their control; and 2) the group is a minority, or is politically powerless (see Lyng v. Castillo, 477 U.S. 635 (1986); Bowen v. Gilliard, 483 U.S. 587 (1987)).

The state court noted that both state and federal courts have generally applied the same criteria to determine whether a classification is suspect, quasi-suspect, or neither. The court concluded that the factors that determine whether a group should be accorded heightened scrutiny under the federal constitution closely correlate with the factors that determine whether a group should be accorded heightened scrutiny for the purposes of the state constitution. The court noted that the US Supreme Court has placed far greater weight on the first two factors (a history of discrimination based on a characteristic that bears no relation to the ability of members of the group to contribute to society) than on the remaining two factors. For this reason, classifications on the basis of race and sex have been accorded strict scrutiny and quasi-strict scrutiny respectively, whereas classifications on the basis of age and disability have not been accorded heightened scrutiny (the latter characteristics frequently bear upon the ability of members of the class to contribute to society). The US Supreme Court has granted suspect class status to a group whose distinguishing characteristic is not immutable (resident aliens can become citizens, but are nevertheless considered to be a suspect class (see Nyquist v. Mauclet, 432 U.S. 1 (1977))), as well as to a group that is not a minority (women are actually a numerical majority in the US, but are nevertheless considered to be a quasi-suspect class). In addition, political power is not a characteristic that lends itself readily to objective assessment, making it extremely difficult for appellate courts generally to determine the extent of the political power of a group.

The court held that the test of whether a group deserves suspect class status is too exacting to test whether a group deserves quasi-suspect class status; the factors that are weighed when determining whether a group should be accorded suspect class status should not be weighted to the same extent when determining whether a group should be accorded quasi-suspect class status. Nevertheless, the factors are similar in both instances.

The court then turned to a crucial threshold examination – whether, as a matter of law, gay persons should be considered to be members of a quasi-suspect class. The court noted that “[g]ay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society.” The court also noted that “the characteristic that defines the members of this group – attraction to persons of the same sex – bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens.” Turning to the issue of immutability, the court held that “[b]ecause sexual orientation is such an essential component of personhood, even if there is some possibility that a person’s sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so.” The court noted that gay people are certainly a minority, and that gay people have suffered “the enduring effects of centuries of legally sanctioned discrimination.” On this basis, the court held that laws singling gay people out for disparate treatment should be subjected to heightened judicial scrutiny.

The court employed strong language and citations from numerous sources to make the point that gay persons have been tormented, abused, terrorized, and grossly mistreated, both by fellow citizens and by the state itself, agreeing with the assertion that “[o]utside of racial and religious minorities, we can think of no group that has suffered such pernicious and sustained hostility…as homosexuals” (cited from in re Marriage Cases, 43 Cal. 4th 841 (2008)). Significantly, the court adduced Bowers v. Hardwick, 478 U.S. 186 (1986) as an example of pernicious and invasive hostility directed towards gay persons less than 25 years ago by no less an entity than the US Supreme Court. Referring to the existence of sodomy statutes in 25 states at the time that Bowers was handed down, and 14 states by the time Bowers was expressly overruled by Lawrence v. Texas, 539 U.S. 558 (2003), the court held that it was beyond cavil that gay persons, as a group, met the requirement of a lengthy history of past (and ongoing) discrimination. Significantly, the state made no effort to rebut this assertion, agreeing with it from the outset.

The state also agreed with the assertion that being gay in no way impairs the ability of individuals to contribute to society – an assertion vehemently protested by organizations such as the “American Family Association” (AFA) and the “Family Research Council” (FRC). The court again cited from numerous sources to make the point that gay persons are able to perform in, participate in, and contribute to society on the same terms as heterosexuals. Observing that the suspect classes of race, national origin, and alienage “are so seldom relevant to the achievement of any state interest that laws grounded on such considerations are deemed to reflect prejudice and antipathy,” the court held that this observation is no less applicable to gay persons.

The court regarded as “highly significant” a number of important public policy considerations that treat gay persons similarly to heterosexual persons. For example, both gay and heterosexual persons are deemed to be capable of raising children, and may adopt children on the same terms. Discrimination on the basis of sexual orientation in employment, housing, state hiring practices, state licensing practices, the administration of state educational and vocational programs, state-administered benefit programs, and access to places of public accommodations is prohibited by state law. This reinforces the contention that gay persons are as capable of contributing to society as are heterosexual persons.

The court then addressed the issue of whether sexual orientation is an “immutable” characteristic, and concluded that other courts in other jurisdictions had reached contrary conclusions with respect to this issue. The Connecticut Supreme Court concluded that sexual orientation is highly resistant to change, but further held that it was unnecessary to determine whether sexual orientation is an immutable characteristic to the same extent and degree that race, national origin, and gender are immutable characteristics, because even if sexual orientation is not immutable, the plaintiffs had established that they satisfied this consideration. The US Supreme Court has recognized that, because “the protected right of homosexual adults to engage in intimate, sexual conduct…[represents] an integral part of human freedom” (Lawrence, supra at pp. 576-7) [emphasis added], individual decisions by consenting adults concerning the intricacies of their physical relationships are entitled to constitutional protection. The court observed that sexual orientation is central to personality and is an integral part of one’s identity, rendering it entirely inappropriate to require a person to change, or repudiate, his or her sexual orientation in order to avoid discriminatory treatment. More specifically, the court held that gay persons are characterized by a “central, defining trait of personhood, which may be altered [if at all] only at the expense of significant damage to the individual’s sense of self” (cited from Jantz v. Muci, 759 F.Sup. 1543, 1548 (D. Kan. 1991)) (holding that “to discriminate against individuals who accept their given sexual orientation and refuse to alter that orientation to conform to societal norms does significant violence to a central and defining character of those individuals.”). Under this rubric, gay persons are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic.

Continuing the inquiry (whether or not gay persons comprise a quasi-suspect or suspect class), the court examined the relative political power of gay persons, noting that a lack of political power is one of the indicia traditionally associated with members of suspect or quasi-suspect classes. In cases involving groups seeking heightened protection under the federal Equal Protection Clause, the US Supreme Court described this factor without reference to the minority status of the subject group, focusing instead on the group’s lack of political power (see, e.g., Massachusetts Board of Retirement v. Murgia, supra). In its most recent formulation of this test, the US Supreme Court has indicated that this factor is satisfied upon a showing either that the group is a minority or that it lacks political power (see Bowen v. Gilliard, supra). This test involves a determination of whether the group in question is a “discrete and insular minority,” (United States v. Carolene Products Co., 304 U.S. 144 (1938)) or, if it is not a numerical minority, whether the group nonetheless is lacking in political power (see, e.g., Frontiero, supra, holding that women are a quasi-suspect class, notwithstanding the fact that women are not a minority).

Gay persons unquestionably comprise a distinct minority of the population. Consequently, they satisfy the first prong of this disjunctive test and may thus be deemed to satisfy this prong of the suspectness inquiry on that basis alone. Ironically, opponents of granting equal rights to gay persons (in spheres as diverse as marriage equality, employment non-discrimination, and equal access to enrolment in the armed forces) frequently draw attention to studies that purport to show that gay persons comprise a ridiculously small minority (figures of less than one percent have been circulated by opponents of gay equality in an effort to marginalize the gay community and to portray the gay community as extremely small); in so doing, these opponents actually lend support to the classification of gay persons as a quasi-suspect or suspect class.

The state argued that gay people should not be accorded suspect or quasi-suspect class status because they are not politically powerless. Because other courts have applied this component of the suspectness inquiry to deny gay persons heightened protection, despite the fact that they represent a minority of the population, the state supreme court considered this argument.

The US Supreme Court has never defined “political powerlessness” as it is used in this context; in most cases, the US Supreme Court has merely made passing reference to this factor without actually analyzing it (see, e.g., Bowen v. Gilliard, supra). This factor has been described as “ill-defined” because of the lack of objective criteria and the reality that the extent to which a group lacks political power is not easy to ascertain.

The state court looked to the US Supreme Courts quasi-suspectness jurisprudence for guidance. In Frontiero, supra, the US Supreme Court noted that sex is an immutable characteristic that frequently bears no relationship to ability to perform or contribute to society. Although significant advances had been made towards gender equality, “women still faced pervasive, although at times more subtle, discrimination in our educational institutions, in the job market, and perhaps most conspicuously, in the political arena” (Id., 686). The Court noted that Title VII of the Civil Rights Act of 1964 prohibited employers, labor unions, etc. from discriminating on the basis of sex, race, color, religion, or national origin. The Equal Pay Act of 1963 similarly provided that employers may not discriminate between employees on the basis of sex. Furthermore, section 1 of the Equal Rights Amendment (ERA), passed by Congress on March 22, 1972, and submitted to the state legislatures for ratification, declared that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The Frontiero Court held that, “when viewed in the abstract, women do not constitute a small and powerless minority.” Nevertheless, women were “vastly underrepresented in this nation’s decisionmaking councils.” Although women reasonably could not be described as politically powerless in the literal sense of that term, the court nevertheless concluded that women were entitled to enhanced judicial protection because the discrimination to which they had been historically been subjected was irrational and unlikely to be eliminated solely by the enactment of remedial legislation. Thus, heightened scrutiny of sex-based classifications was warranted because such classifications “are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy and because such discrimination is unlikely to be soon rectified by legislative means” (emphasis added) (Cleburne, supra).

The state court noted that women continued to make significant political progress in the years following the US Supreme Court’s decision in Frontiero. Nevertheless, the contemporary US Supreme Court continues to apply heightened scrutiny to statutory classifications based on sex. Similarly, although racial and ethnic minorities have made significant political gains since they were first accorded treatment as a suspect class, courts continue to apply strict scrutiny to statutes that classify on such bases (e.g., Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. ___ (2007)). Classifications based on race or on sex do not become any less suspect or quasi-suspect, respectively, once extensive legislation has been passed on the subjects. The Connecticut Supreme Court cited from Chief Judge Judith Kaye’s brilliant dissent in Hernandez v. Robles, 7 N.Y.3d 388—89 (2006), in which she noted that “[s]uch measures acknowledge – rather than mark the end of – a history of purposeful discrimination...”

The political powerlessness aspect of the suspectness or quasi-suspectness inquiry does not require a showing that the group seeking recognition as a protected class is, in fact, entirely without political power. Women today have much more political power than was the case in 1972, yet they continue to receive heightened protection under the Equal Protection Clause of the Fourteenth Amendment. The Connecticut Supreme Court held that the term “political powerlessness” is clearly a misnomer – this facet of the suspectness inquiry is applied not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power, but rather to ascertain whether the group lacks sufficient political strength to bring about a prompt end to the prejudice and discrimination through traditional political means. Thus, a group satisfied the political powerlessness factor if it demonstrates that, because of the pervasive and sustained discrimination that its members have suffered, there is a risk that the discrimination will not be rectified, sooner rather than later, merely by invoking the political process. The state court applied this standard to gay persons, and readily concluded that gay persons are entitled to heightened protection despite some recent political progress.

The state court noted that gay people have been the target of particularly vicious, long standing, and deeply rooted prejudice, both statewide and nationwide. The US Supreme Court itself – the entity that is supposed to vindicate the rights of minorities by applying the relevant standards of review – engaged in an act of naked cruelty in Bowers v. Hardwick, supra (permitting the states to criminalize the private, consensual behaviour of gay persons, even in the bedrooms of their own homes; the majority opinion was written in tones of sneering contempt directed towards gay persons). When Bowers was handed down, 25 states had laws on their books that criminalized gay sex, even in private settings between consenting adults; some of these statutes provided for the mandatory incarceration of gay persons for many years. Fortunately, Bowers was directly and bluntly overruled by Lawrence v. Texas, 539 U.S. 558 (2003), in which decision the Court implicitly apologized to gay persons for demeaning the claim put forward by the gay plaintiff in Bowers, acknowledging that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” When Lawrence was handed down, 14 states still criminalized gay sex, even in private settings between consenting adults. Gay persons were deemed to be mentally ill until 1973, when the American Psychiatric Association (APA) officially removed homosexuality from the “Diagnostic and Statistical Manual of Mental Disorders” (DSM). The state court noted that “[i]t is impossible to overestimate the stigma that attaches in such circumstances.” In Lawrence, the US Supreme Court noted that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” It should also be borne in mind that three Justices dissented in Lawrence, signing a vitriolic, lengthy, and angry dissent penned by Justice Antonin Scalia. Scalia also wrote the dissent in Romer v. Evans, 517 U.S. 620 (supra); this dissent, in particular, was laced with examples of naked stereotypes, crude generalizations, and rank bigotry. Scalia inveighed against the homosexual “problem” faced by citizens of the State of Colorado, noting that gay persons tended “to reside in disproportionate numbers in certain communities,” where they possessed "political power much greater than their numbers, both locally and statewide." He expressed outrage at the "enormous influence in American media and politics" enjoyed by gay persons, and railed against the fact that gay persons "care about homosexual rights issues much more ardently than the public at large." In essence, Scalia complained about the fact that gay persons availed themselves of the democratic process; he complained about the fact that gay persons actually voted on issues of significance to the gay community. When did it become undesirable, as a matter of civic hygiene, for groups of citizens to vote on issues that impact their welfare? When did willingness to invoke the political process become a distortion of that process, or a danger to that process? Scalia’s analysis in Romer was deeply flawed – in any political system in which persons have the right to vote their policy preferences into law on a “one man, one vote” basis, it is literally impossible for any group to possess “disproportionate” political power. The only circumstance under which one group can exercise what may appear to be “disproportionate” political power is if members of other groups abdicate their own political power (e.g., by not voting). Furthermore, Scalia has never complained that fundamentalist Christians “care about [issues such as mandatory school prayer, outlawing reproductive choice for women, repealing sexual orientation anti-discrimination statutes, etc.] much more ardently than the public at large.” This is a disgraceful form of rank bigotry that has no place in a US Supreme Court decision.

The state court also noted that mainstream religion reflected antipathy towards gay persons, adducing a brief filed by the Becket Fund for Religious Liberty. It is indeed ironic that the groups that call for gay marriage to be prohibited on religious grounds have actually strengthened the case for granting gay persons quasi-suspect class status. Beyond moral disapproval, the court noted that gay people are the target of “virulent homophobia that rests on nothing more than feelings of revulsion toward gay persons and the intimate sexual conduct with which they are associated.” The court adduced the prevalence of hate crimes as another factor militating in favor of granting quasi-suspect class status to gay persons, noting that the hatred and bigotry directed towards gay persons is akin to the type of hatred and bigotry directed towards racial and ethnic minorities, which are accorded suspect class status by the state and federal courts.

The court then noted that no openly gay person has ever been appointed to US Cabinet position or a federal appeals court, or served in the US Senate. Currently, only two openly gay people serve in the US House of Representatives. No openly gay person heads a Fortune 500 company, and it has been estimated that there are only 14 openly gay college and university presidents or chancellors (representing only one half of one percent of such positions nationally). No gay person has been elected to a statewide position in Connecticut, or ever been appointed to the Connecticut Appellate Court or the Connecticut Supreme Court, and only one gay person sits as a judge of the Connecticut Superior Court (the state trial court). Women, by contrast, enjoy much greater representation in positions of power (the state’s current governor, comptroller, and secretary of state are all women, as are the current Chief Justice and two Associate Justices of the state high court). By any standards, gay persons “remain an underclass in our [state and] nation” (cited from Andersen v. King County, 158 Wash.2d 1, 105 n.78, 138 P.3d, 963 (2006). Although the legislature has taken steps to protect gay persons from discrimination, even the state’s anti-discrimination statute contains a disclaimer stating that the statute should not be “deemed or construed 1) to mean the State of Connecticut condones homosexuality or bisexuality or any equivalent lifestyle, 2) to authorize the promotion of homosexuality or bisexuality in educational institutions or require the teaching in educational institutions of homosexuality or bisexuality as an acceptable lifestyle, 3) to authorize or permit the use of numerical goals or quotas…4) to authorize the recognition of or the right of marriage between persons of the same sex, or 5) to establish sexual orientation as a specific and separate cultural classification in society.” As a matter of state policy, gay relationships are thus disfavored (“the purposeful description of homosexuality as a “lifestyle” not condoned by the state stigmatizes gay persons and equates their identity with conduct that is disfavored by the state”). The court also noted the decade of rancorous, failed attempts to pass the non-discrimination statute, and the fact that this statute was only passed after a “compromise” was struck that resulted in, inter alia, this unprecedented disclaimer being included in the statute.

Finally in the suspectness inquiry, the court noted that the US Supreme Court has held that the enactment of anti-discrimination measures prohibiting discrimination on the basis of sex is a factor supporting the conclusion that the subject group (women) is in need of heightened constitutional protection (see Frontiero v. Richardson, supra). Again excerpting from Chief Judge Kaye’s dissent in Robles, the court noted that “[s]uch measures acknowledge – rather than mark the end of – a history of purposeful discrimination” (see Hernandez v. Robles, supra).

The combination of all of these factors led the court to conclude that gay persons in the State of Connecticut currently command less political power than did women in 1973, when Frontiero was handed down, and that gay persons were thus deserving of quasi-suspect classification. The court also remarked that the state had offered no justification for applying a different standard to gay persons under the state constitution than the Frontiero court applied to women under the US Constitution. Again, the court pointed out that the existence of laws prohibiting discrimination on the basis of race and sex has not led the US Supreme Court to withdraw strict scrutiny and quasi-strict scrutiny to laws that classify on these bases, respectively. The court spent considerable time comparing the current status of gay persons with the status of women when Frontiero was handed down; despite the fat that the ERA was considered to be extremely likely to pass, the Frontiero Court nevertheless applied quasi-strict scrutiny to sex-based classifications.

Prior to the handing down of this decision, the Connecticut Supreme Court had never considered whether classifications that discriminate against gay persons are entitled to heightened scrutiny under the equal protection provisions of the state constitution (article first, section 20 (as amended)).

The state correctly asserted that, in the overwhelming majority of cases in which the federal courts have considered this question, these courts have held that mere rational basis review is warranted. However, the court noted that these courts relied primarily on the US Supreme Court’s holding in Bowers v. Hardwick, supra. Although Bowers was a case involving a due process challenge, the lower courts have held, consistently, that because it was constitutionally permissible to punish intimate homosexual conduct, a group that is defined by that conduct cannot constitute a suspect or a quasi-suspect class (e.g., Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54 F.3d, 261, 266 (6th Cir. 1995)). Thus, the impact of Bowers on subsequent equal protection cases was enormous. However, and crucially, Bowers is most emphatically no longer good law; to the contrary, Bowers has been expressly and bluntly overruled (see Lawrence v. Texas, supra), and the US Supreme Court has held that the dissent in Bowers should have been controlling. Furthermore, Bowers was not overruled because of societal changes (which have a major impact in cases implicating the Eighth Amendment’s prohibition of “cruel and unusual” punishment – a concept that “draws its meaning from the evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles, 356 U.S. 86 (1958))) – it was overruled because the Lawrence Court recognized that Bowers was incorrectly decided at the time that it was decided (“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled” (Lawrence, supra)). The Court went further, acknowledging in strong language that “[t]he central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons...The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

The Lawrence Court also held that it had construed the relevant Due Process question far too narrowly in Bowers. The Bowers Court framed this issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” This coarse, insulting and denigrating framing of the issue “…disclose[d] the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse” (Lawrence, supra).

This decision “removed the precedential underpinnings of the federal case law supporting the defendant’s claim that gay persons are not a quasi-suspect class.” In Lawrence, the US Supreme Court also held that the foundations of Bowers had been seriously eroded by intervening case law, making specific reference to Planned Parenthood v. Casey, 505 U.S. 833 (1992) and to Romer v. Evans, 517 U.S. 620 (1996).

In Casey (supra), the Court reaffirmed the substantive component of the Due Process Clause of the Fourteenth Amendment. Casey is perhaps best known for the following statement:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

This assertion is wholly irreconcilable with the Court’s holding in Bowers. Gay persons may seek autonomy with respect to the formation and conduct of personal, intimate relationships. Bowers would deny them this right. Bowers would permit the states to punish gay persons for expressing the very characteristic that is so central to their lives. The Lawrence Court recognized that it had made a serious mistake, and further recognized that this mistake had very real and deleterious consequences for the lives of gay persons. In Lawrence, the Court held that Associate Justice John Paul Stevens’ dissent in Bowers should have been controlling. This dissent emphasized that the fact that the governing majority of persons has traditionally viewed a practice as immoral is not a sufficient reason for upholding a law prohibiting that practice. Also, decisions by unmarried persons with respect to sexual behaviour are protected by the substantive component of the Due Process Clause in the same way that decisions by married persons are protected.

The state court recognized that Lawrence represented a “sea change” in US Supreme Court jurisprudence concerning the rights of gay persons. Almost all of the federal courts (at both the district level and the intermediate appellate level) relied heavily, if not exclusively, upon Bowers to conclude that gay persons are not entitled to consideration as a quasi-suspect or a suspect class. This impediment has been removed by Lawrence. The considerations that normally come into play when deciding whether a group of persons should be granted suspect class or quasi-suspect class status may now be applied by the federal district courts and the federal appellate courts to cases in which classifications are made on the basis of sexual orientation. Thus, examination of federal precedent is inappropriate at this time; reliance on such precedent would be misplaced, due to the fact that almost all federal precedent has been influenced by Bowers.

Two decisions handed down within a month of each other reflect the influence that Lawrence is now having on due process challenges to the ban against openly gay persons serving in the armed forces of the US. In May 2008, a three-judge panel of the US Court of Appeals for the Ninth Circuit reinstated a lawsuit filed by Air force Major Margaret Witt, who had been suspended from duty pursuant to 10 U.S.C. section 654 (the basis for the “Don’t Ask, Don’t Tell” policy that prohibits openly gay men and women from serving in the Armed Forces) (see Witt v. Department of the Air Force, 527 F.3d 806, 828 (9th Cir. 2008), May 21, 2008). Senior Circuit Judge William Canby held that 10 U.S.C. section 654 should be subjected to strict scrutiny; he based this conclusion on the proposition that the right to engage in private, consensual sexual relations with another adult is a right of the highest constitutional order, and that this right is firmly protected by the substantive component of the Fifth Amendment’s Due Process Clause (Canby asserts that although the US Supreme Court did not expressly characterize this right as “fundamental,” it certainly treated it as such). Circuit Judges Graber and Gould held that 10 U.S.C. section 654 should be subjected to quasi-strict scrutiny; they concluded that the US Supreme Court had engaged in a searching inquiry that was certainly more demanding than mere rational basis review. The Connecticut Supreme Court adduced this decision as a case on point, holding that reliance on federal precedent controlled by Bowers is now entirely inapposite.

(Although this was not discussed by the Connecticut state supreme court, a three-judge panel of the US Court of Appeals for the First Circuit recently held that the US Supreme Court, in Lawrence, recognized a protected liberty interest in private, consensual sexual intimacy, requiring a “balancing of constitutional interests that defies either the strict scrutiny or rational basis label” (see Cook v. Gates, Nos. 06-2313, 06-2381, June 9, 2008). Judge Howard engaged in a meticulous examination of Lawrence, articulating four reasons in support of this holding. This falls outside the scope of this analysis, but it should be apparent that Lawrence has caused at least two of the federal appellate courts (to date) to conclude the right to sexual intimacy is a right of a very high constitutional order.)

For these reasons, the Connecticut Supreme Court concluded that almost all of the federal case law articulating the standard of review to which gay persons (as a group) should be subjected is no longer good law. This certainly appears to be a sound conclusion, given the above two circuit court opinions.

In Romer v. Evans, supra, the US Supreme Court purported to apply rational basis review to strike down Colorado’s Amendment 2 (see above discussion) (in fact, the Court may have applied a much more demanding standard of review than mere rational basis review, notwithstanding the language employed). The state argued that, because the US Supreme Court applied rational basis review to find that Amendment 2 violated the Equal Protection Clause, this is the standard of review that should always be applied in cases in which classifications are made on the basis of sexual orientation. The Connecticut state court spent little time exposing the folly underlying this reasoning. The Romer Court held that Amendment 2 could not withstand even the lowest level of review (rational basis review); it was therefore entirely unnecessary for the Court to decide whether heightened scrutiny was required. This is in accordance with the Court’s own well-established principle “never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied” (see Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985)).

In sum, the court held that federal case law is inapposite because these cases rely so heavily on Bowers v. Hardwick, supra, which has been overruled by Lawrence v. Texas, supra. In addition, federal courts that have determined that gay persons are not entitled to heightened protection have failed to reconcile their analyses with the analysis employed by the US Supreme Court in concluding that women comprise a quasi-suspect class.

The court then turned to an analysis of sister state supreme court opinions. The majority of such opinions have concluded that gay people are not entitled to heightened protection; however, the Connecticut state court concluded that these cases were analytically unsound and did not constitute persuasive authority. Instead, the Connecticut state court held that the recent opinion handed down by the California Supreme Court (in re Marriage Cases, S147999, May 15, 2008) constituted persuasive authority; the Connecticut state court also aligned itself with Chief Judge Kaye’s dissent in Hernandez v. Robles, supra. Time constraints prevent a detailed discussion in this essay; however, in almost all cases, the respective state supreme courts failed to properly apply the four-pronged test for suspectness or quasi-suspectness.

Turning to public policy considerations, the state court held that the change to the definition of marriage would not in any way impair the ability of heterosexual persons to avail themselves of the benefits and protections afforded by this institution. Instead, the state court held that granting gay persons access to this institution would expand the right to marry without any adverse effect on those already free to exercise that right. The state court compared this change to the change worked when the US Supreme Court struck down the ban on interracial marriages in Loving v. Virginia, 388 U.S. 1 (1967). The court also considered the effect that the ban on same-sex marriage has on children raised by same-sex partners, concluding that it was in the best interests of children raised by such couples to expand the definition of marriage so as to include same-sex spouses. Thirdly, the state court held that “civil unions” would be viewed as reflecting an official state policy that this entity is inferior to marriage. Finally, the court concluded that religious autonomy would in no way be impaired by expanding the definition of marriage to include same-sex couples. Those churches opposed to same-sex marriages can never be forced to marry couples of the same sex, just as they can never be forced to marry divorced people, or people who are not members of the church in question. This is an important point that has been made, over and over again, by gay rights activists; no church would ever be forced to conduct marriages of same-sex couples, and religious autonomy would in no way be compromised by permitting same-sex marriages.

The state court then turned to the final determination – having established that gay persons meet the four criteria adumbrated by the court for treatment as a quasi-suspect class, the state’s actions have to be “substantially related to an important state interest” (as opposed to “rationally related to a legitimate state interest” (rational basis review), or “necessary for the promotion of a compelling state interest” (strict scrutiny)). The state proffered two justifications for not permitting same-sex couples to marry, in the face of the court’s determination that gay persons comprise a quasi-suspect class.

The first reason advanced by the state was to promote uniformity and consistency with the laws of other jurisdictions. The state, however, advanced no explanation as to why the promotion of uniformity with the laws of other jurisdictions constituted a truly important state interest, and failed to identify case law that would support this contention. In the absence of such a showing by the state, the state could not prevail on its claim that “the state’s interest in defining marriage as most other jurisdictions do is sufficiently compelling to justify the discriminatory effect” that this definition has on gay persons.

The second reason advanced by the state was to preserve the traditional definition of marriage as a union between a man and a woman. It was abundantly clear, from the record, that this was the state’s primary, and overriding, goal. The circular nature of this reasoning is self-evident. Citing from Chief Judge Kaye’s dissent in Hernandez v. Robles, supra, the court held that “[a] classification…cannot be maintained merely “for its own sake” (see Romer v. Evans, supra). Instead, the classification (that is, the exclusion of gay persons from civil marriage) must advance a state interest that is separate from the classification itself. Because the “tradition” of excluding gay persons from civil marriage is no different from the classification itself, the exclusion cannot be justified on the basis of “history.” Indeed, the justification of “tradition” does not explain the classification; it merely repeats it. Simply put, a history or tradition of discrimination – no matter how entrenched – does not make the discrimination constitutional” (internal citations omitted). Indeed, the court noted, “the fact that same-sex couples have traditionally been prohibited from marrying is the reason [the action challenging the ban on same sex marriage] was commenced; it cannot be converted into the dispositive reason it cannot succeed” (cited from in re Marriage Cases, supra).

Like the California Supreme Court, the Connecticut Supreme Court approached the issue not by creating a new right to “same-sex marriage,” but by applying equal protection theory to include gay people in the pre-existing right of marriage. When the California Supreme Court overturned the prohibition against interracial marriage (see Perez v. Sharp, 32 Cal.2d 711, 198 (1948)), this court did not create a new right to “interracial marriage” – it employed state constitutional analysis to expand the right to marry to include interracial couples. The US Supreme Court eventually followed the lead set by the California Supreme Court, holding that the prohibition of interracial marriages violated the Equal Protection Clause of the Fourteenth Amendment (Loving v. Virginia, 388 U.S. 1 (1967)).

Although three of the seven Justices dissented, it is noteworthy that the dissenting Justices made only passing reference to the tired refrain that this matter should be decided by the democratic process, as opposed to being decided by judges through state constitutional interpretation. One of the three dissents focused primarily on the assertion that civil unions were inferior to actual marriages, as well as on the importance of the “political powerlessness” factor in triggering quasi-strict scrutiny. One patently absurd dissenting argument was that there was no equal protection violation, because both gay and heterosexual persons have the right to marry a person of the opposite sex. Another analytically impoverished dissent argued that the purpose of marriage is to regulate procreation – an argument that has been emphatically rejected by the California Supreme Court and by the Connecticut Supreme Court majority. As has been pointed out elsewhere, the ability to procreate is no longer central to the definition of marriage. Many married people choose not to have children, or are unable to have children, just as many unmarried people choose to have children. This dissent reduced marriage to the status of a vehicle that “enhances the special status of procreative conduct.”

Unlike the California state constitution, the Connecticut state constitution cannot be amended directly, by the voters. This is crucial – whereas the right wing can whip up anti-gay hysteria in California, and may even succeed in reversing the California Supreme Court decision, the right wing cannot manipulate the voters of Connecticut in this manner. Connecticut has thus become the third state to recognize gay marriage in both name and substance. (A challenge to the prohibition of gay marriage in Iowa is currently pending.)

All of this is proof that the incremental strategy of appealing to state supreme courts is working, albeit slowly. Just as the gay community turned to state supreme courts to strike down sodomy statutes in the wake of Bowers (supra), so is the gay community turning to state supreme courts to strike down prohibitions against gay marriage. Both time and justice are on our side.

Three down, with 47 to go.


PHILIP CHANDLER