Sounds like an insult, doesn’t it? You are a member of a suspect class.  We’re taking your passport.  Don’t leave the state without telling the police.

Except that’s not right at all.  I researched the term because lawyers on our side of the Prop 8 trial kept asking about historical discrimination against gays.  Does [...]]]> “Suspect class.”

Sounds like an insult, doesn’t it? You are a member of a suspect class.  We’re taking your passport.  Don’t leave the state without telling the police.

Except that’s not right at all.  I researched the term because lawyers on our side of the Prop 8 trial kept asking about historical discrimination against gays.  Does that matter to the verdict?  Quite a bit, it turns out.  Judges can choose from a number of standards when deciding whether a law is unconstitutional.  Some standards are harder to meet than others, and no one can be sure which standard the judge – or the Supreme Court – will use when evaluating Prop 8.  That’s the subtext of what’s going on now.

So let’s back up and look at “suspect class” again (disclosure:  I’ll be plagiarizing Wikipedia in much of what follows). A “suspect class” is a group of people who:

• are a “discrete” or “insular” minority
• possess an immutable trait (except in the case of religion, for some reason)
• share a history of discrimination, and
• are powerless to protect themselves via the political process.

Race, national origin, and religion are suspect classes in US federal court.  Age, disability, political preference, and sexual orientation are not.

When it comes to civil rights law, it’s great to be a suspect class.  Because judges will use a stricter standard when scrutinizing laws that affect you.  Basically, there are three standards for evaluating laws that discriminate against minorities.

• Strict scrutiny
• Intermediate scrutiny
• Rational basis scrutiny

When judges use rational basis scrutiny, they aren’t scrutinizing very hard.  It’s easy for a law to stay in effect.  Basically, under rational basis scrutiny, the supporters of a law only need to show that it’s a reasonable means of achieving a legitimate goal.  It doesn’t matter whether the proponents were secretly motivated by bigotry and hatred; as long as the law is a reasonable means to a legitimate end, it’s okay.

But when the law discriminates against a suspect class, judges don’t use rational basis scrutiny.  No, with suspect classes, they use strict scrutiny, and strict scrutiny is a much tougher standard.

1. First, the law under consideration must be justified by a compelling governmental interest, something necessary or vital, as opposed to something merely preferred.  Things like national security.
2. Second, the law or policy must be narrowly tailored to achieving that goal.  It has to operate like a scalpel rather than a machete.
3. Finally, the law or policy must be the least restrictive means for achieving that interest.  In other words, if there’s a different law that would be less discriminatory but still effective, then you’ve got to nix the current law.

For minorities, strict scrutiny rocks.  Think about our opponents’ favorite argument:  We have to keep marriage unchanged in order to provide a stable and healthy environment for raising kids. Stop screaming for a moment, and pretend that banning gay marriage would contribute to that (stop screaming!).  Obviously, promoting a stable environment for children is a compelling government interest.  But is banning gay marriage a narrowly tailored way of doing that, or is it a strange, bizarre, and indirect method, with very direct harm to gays and lesbians?  And is it the least restrictive means of providing that environment, or could we find solutions that don’t quite so heavily penalize the LGBT community?

Unfortunately, sexual orientation is not a suspect class in federal court.  Though maybe it should be.  And maybe we can use this case to make that happen.  Or maybe we can’t, and we have to get the courts to toss out Prop 8 based on rational basis scrutiny – which is tough to do, because then judges will simply be looking to see if banning gay marriage might possibly work in the way that bigots say it will.

And just to make things more complicated, you’ve also got intermediate scrutiny, which is a sort of in-between scrutiny:  yeah, you can discriminate, but you better have a really good reason.

Basically, then, we can sum up the constitutional strategies of each side like this:

• The good guys: Gays qualify as a suspect class, and Prop 8 fails the strict scrutiny standard.  And even if they aren’t a suspect class, Prop 8 isn’t a reasonable means of protecting marriage and kids – in fact, it actually harms them.
• The bad guys: No way are gays a suspect class!  All we need is rational basis scrutiny, and we’ll show that unbigoted people have perfectly sensible reasons for denying basic human rights to those awful homosexuals.

So, hopefully, the following things will now make more sense:

• The attempts by our side to show that:
  • Homosexuality is a state of being, and not just behavior.
  • Being gay is not a choice.
  • Gays have a history of discrimination.
  • Prop 8 is being pushed by — and was voted in by — people who think gays are yucky.
  • Gays can’t win their rights at the ballot box.
  • Gays suffer from the ban on marriage, and so do their kids.

• The attempts by the other side to show that
  • The whole idea of being a homosexual – as opposed to someone who occasionally dabbles in homosexual acts – is a new concept, and not even a universal one.
  • Being gay is a choice.
  • Gays never really had it so bad, and if they did once, they don’t anymore.  I mean, look at the popularity of Brokeback and Will & Grace.
  • Gays have tons of political power.  Nancy Pelosi can’t get enough of ‘em.  And look at all those anti-discrimination laws.
  • Gay marriage will trash the whole institution and hurt children.

In real life, I’m an educator, not a lawyer.  This is just my attempt to get the basics clear – not the nuances – so that people like me can better understand the Prop 8 proceedings.  If you’re an expert and have a correction to make, please chime in.

This is Mecklenberg County Commissioner Bill James.  During a a debate on whether to offer domestic partner benefits to county employees Commissioner Vilma Leake spoke of her son, who died of AIDS in [...]]]> Opponents of marriage equality love to position themselves as defenders of morality.  Why, then, are their actions so often despicable?

This is Mecklenberg County Commissioner Bill James.  During a a debate on whether to offer domestic partner benefits to county employees Commissioner Vilma Leake spoke of her son, who died of AIDS in 1993.  Bill’s response to this tragic, personal story was to lean over to her and say,

So he was a homo?  Really?

Having displayed his Christian virtues of kindness and compassion, Bill might have stopped there.  But no.  The next morning, he lied about the incident on radio station WBT. He told radio host Keith Larson he was simply asking Vilma for clarification, and claimed:

Before I could get completely through it, she reacted and made some sort of comment to the effect that somebody needed to hurt me.

Ah, so he didn’t mean to say “homo.”  She cut him off!  It was all Vilma’s fault! Except at this point the host played the clip of Bill saying,

So he was a homo?  Really?

Bill’s first response was to say, “What the heck was that?” And when the host told him exactly what the heck it was, Bill paused long and hard before answering, “If you say so.”

Next, caught in a clear and stark lie, Bill changed tactics and said he didn’t know “homo” was a derogatory term.  And since then, he’s gone on a two-prong attack. He’s called Vilma a hypocrite, because decades ago she married a clergyman in a church that opposed homosexuality.   And he’s shocked – shocked! – that this woman has threatened him with violence (actually, she said, “You’re going to make me hurt you.  Don’t do that to me.  Don’t talk about my son.”).

Let’s recap Bill’s strategy in the civil equality debate:

1. Degrade
2. Lie
3. Attack

Even if Bill genuinely didn’t know “homo” was derogatory, it’s still true that his first defense was to lie about saying it.  We see this constantly from anti-equality forces: they toss out deceit after deceit, and see which ones they can get away with.  Meanwhile, we spend the bulk of our time on the defensive, debunking their falsehoods even though the news cycle has moved on to the next deception, leaving the truth unheard.

The pattern is clear:  Our opponents abandon their moral principles in the course of their moral crusade.  Either they know they’re doing this, and it’s a failure of character, or they suffer a kind of unreasoning moral blindness when it comes to homosexuality.  That’s the mark of homophobia — which they claim doesn’t exist.  Even as they prove themselves wrong, again and again.

PS:  Bill James made one comment on WBT that hasn’t gotten much attention:

If she’s going to use her dead son’s tragic death as justification for allowing the behavior to go on – you know, more of that behavior to go on – I don’t think that she’s honoring her son’s memory.

“Allowing the behavior to go on.”  Let that sink in and give you a chill.

Who can take this seriously? No one who has a close gay relative, neighbor, friend, or colleague. All we have to do to win is live outside the closet.

Studies show that straights who know gays are far more likely to support equality. Our opponents have never [...]]]> This is why we’ll win:

Who can take this seriously? No one who has a close gay relative, neighbor, friend, or colleague. All we have to do to win is live outside the closet.

Studies show that straights who know gays are far more likely to support equality. Our opponents have never come to grips with this. If we were such villains, you’d expect those who know us the best to fight us the hardest. But it ain’t so. Our enemies rely on ignorance, and we have the power to destroy that ignorance. You’ll never change Pat Robertson’s mind by casually mentioning your weekend plans with your partner. But you might change that undecided middle-of-the-roader in your carpool.

The next step in our battle will be to talk to EVERYONE we know about marriage equality. This video is my first stab at developing a set of answers to our opponents’ objections. I hope it can help prepare people and give [...]]]> So we lost the CA Supreme Court fight.  Boo hoo.  We’ll win the war.

The next step in our battle will be to talk to EVERYONE we know about marriage equality. This video is my first stab at developing a set of answers to our opponents’ objections. I hope it can help prepare people and give them confidence for those one-to-one conversations that will win us equality.

Download a text compilation of these points. Also, a list of the source videos after the jump.

You’ll have to cut and paste these links into your browser — I’m crazy busy getting ready for the AIDS LifeCycle bike ride from San Francisco to LA, and don’t have time to make it pretty:

http://www.youtube.com/watch?v=Bw7YoXXxRj4

http://www.youtube.com/watch?v=OTiTYRvaloQ

http://www.youtube.com/watch?v=EczIRpJkVZM

http://www.youtube.com/watch?v=fM2MNdIGT7g

http://www.youtube.com/watch?v=XNdaAyQp_Og

http://www.youtube.com/watch?v=u4A1tH5MbMU

http://www.youtube.com/watch?v=hUskV1RxRfA

http://mediamatters.org/mmtv/200905120037

http://www.youtube.com/watch?v=pKoqpV2L9_4

http://glaadblog.org/2009/05/13/bill-oreillys-evolution-marriage-equality-thing-will-lead-to-unions-with-a-goat-duck-turtle-dolphin/

Don’t flip-flop on DOMA.

The state’s Roman Catholic bishops have been somewhat distracted, too, having focused their lobbying energies this session on defeating a bill that would extend the statute of limitations for victims of [...]]]> Opponents of marriage equality in New York are having a hard time getting their act together. One reason? From the New York Times:

The state’s Roman Catholic bishops have been somewhat distracted, too, having focused their lobbying energies this session on defeating a bill that would extend the statute of limitations for victims of sexual abuse to bring civil claims, and have appeared unprepared for the battle over marriage.

Never let our opponents wave their religion as a flag of their virtue.

Now all of a sudden I’ve got someone who wasn’t a spouse before, that I had no responsibility for, who is now getting claimed as a spouse that I now have financial responsibility for. [...]]]> By now, you’ve probably seen this insane analysis by Republican Party Chairman Michael Steele on how marriage equality will hurt small business:

Now all of a sudden I’ve got someone who wasn’t a spouse before, that I had no responsibility for, who is now getting claimed as a spouse that I now have financial responsibility for. So how do I pay for that? Who pays for that? You just cost me money.

Many have decried his cynical cost-benefit approach to civil rights, but I think we’re missing an opportunity. Times are tough. If banning same-sex marriage is saving businesses money, then we should at least get a piece of the action. I want my same-sex discount!

]]> http://wakingupnow.com/blog/i-want-my-same-sex-discount/feed 3 http://wakingupnow.com/blog/victory-in-maine http://wakingupnow.com/blog/victory-in-maine#comments Wed, 06 May 2009 17:34:39 +0000 robtish http://wakingupnow.com/blog/?p=154 From Maine’s governor, who previously opposed marriage equality:

I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage. This new law does not force any religion to recognize a marriage that falls outside of its beliefs. [...]]]> From Maine’s governor, who previously opposed marriage equality:

I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage. This new law does not force any religion to recognize a marriage that falls outside of its beliefs. It does not require the church to perform any ceremony with which it disagrees. Instead, it reaffirms the separation of church and state. It guarantees that Maine citizens will be treated equally under Maine’s civil marriage laws, and that is the responsibility of government.

Can we send this to every governor and legislator in the country?