Friday, May 16, 2008

A "suspect class" a good way!

I am so pleased with the California Supreme Court's decision, I could just smile all weekend!

This decision reminds me of the Lawrence v. Texas majority decision by Justice Kennedy, who noted, "The (gay male) 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." That important US Supreme Court decision reversed the execrable decision in Bowers v Hardwick and recognized the humanity of lesbians and gay men.

This decision in California is the first to recognize that gay men and lesbians are (1) targets of discrimination, whose (2) identities as gay and lesbian people are not just based on some random or flawed decision or behavior but actually an identity like race, ethnicity, gender, and religion, and (3) that discrimination against us in the law should be reviewed using the most stringent critical view. This approach is called "strict scrutiny."

The Court explains:
Because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual’s ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification.

Using this approach to review, the Court asks the state to have an especially compelling reason for enacting and maintaining a law that discriminates against a specific class of its citizens. A majority of the California justices found that the state's rationale was just not good enough.

The California Court states: contrast to earlier times, our state now recognizes that an individual’s
capacity to establish a loving and long-term committed relationship with
another person and responsibly to care for and raise children does not
depend upon the individual’s sexual orientation, and, more generally, that an
individual’s sexual orientation — like a person’s race or gender — does not
constitute a legitimate basis upon which to deny or withhold legal rights. We
therefore conclude that in view of the substance and significance of the
fundamental constitutional right to form a family relationship, the
California Constitution properly must be interpreted to guarantee this basic
civil right to all Californians, whether gay or heterosexual, and to same-sex
couples as well as to opposite-sex couples.

In some ways, this case was a double loss for our opponents. Not only did they lose on the marriage issue, they lost on their desire to promote homosexuality as only (aberrant) behavior. Sexual orientation and identity include sexual behavior, but they are not limited to sexual acts or even sexual desire. The Court acknowledged this in their recognition of gay men and lesbian as a "suspect class."

Further, the decision recognized what many same-sex couples in New Jersey, California, and Vermont have known: marriages and civil unions are not the same. Even when steps are taken to provide the practical benefits of marriage to members of a civil union, such as hospital visitation and medical decisionmaking rights, these do not equal marriage.

To read more from people with much more legal knowledge than I, check out Slate magazine's blog.


As we discussed the decision, the gf and I were reminiscing about our history together and the development of gay and lesbian rights in our country. We got together shortly before the 1993 March on Washington for Lesbian, Gay, and Bi Equal Rights and Liberation in DC, which we attended together in our best dyke t-shirts and fanny packs. It was a heady moment: flush with new love and the election of Bill Clinton into the White House, we felt that change was sure to happen. We will both forever remember riding up the escalator from the Metro with hundred of other LGBT folks, chanting and shouting as we made our way to the march. It was an amazing sense of community and opportunity.

It didn't all work out, of course. Yes, Clinton issued an executive order outlawing discrimination against federal employees based on sexual orientation, appointed a gay man as an ambassador, and a lesbian as the Assistant Secretary of the U.S. Department of Housing and Urban Development. Don't Ask, Don't Tell was a pretty big fiasco, and ENDA and other bills just never made the cut in his administration. But at least we believed that we had a friend in the White House, someone who wasn't completely freaked out by our identities. Eventually, we grew more and more disillusioned with what seemed to be a sqandered Presidency. Yet, even during that time, the gf and I saw our relationship grow and flourish. We held a commitment ceremony during his administration, attended by more than 100 friends and family.

We celebrated Lawrence v. Texas a decade after that national march in June 2003, crying at the recognition of our humanity by the highest court in the country, and shouting at the reversal of Bowers, which had been decided when I was in my late teens and she was in her early twenties. That decision had left an ugly mark on our lives, one which we still strive to erase from our psyches. A few months later, in November 2004, we watched as the Massachusetts Supreme Court announced that barring same-sex couples from marrying violated the State Constitution. And then today, she called me at work to let me know about the California decision. We rejoiced with friends over supper, noting the importance and meaning of being recognized as a "suspect class," as people who deserve equality under the law.

The state and federal courts have been important in our lives as lesbians in the US, even though we have not ever lived in a state that allowed gay marriage or even civil unions. These decisions affect our well-being, our relationship, and our sense of ourselves as valued and respected residents and citizens of the US. These positive decisions bolster us in our lives, in our love, and in our connection to our community and our country.

Today, I am hopeful.


Jennifer said...

I absolutely echo your sentiments of hope and glee! I was whooping it up in my living room when I got the news and saw Gavin Newsom interviewed on CNN. And I LOVE the rallying cry he made in his speech--that this is not just going to stop in CA--this is going to send a message to the rest of the nation. The images of couples celebrating in CA were just inspiring and brought tears to my eyes.

sherishu said...

Yippee!!! Now that it's 2 states (along with what, 4 that have civil union?), I think the tide is truly turning. The bigots will have their say, but will eventually become irrelevant. I say it again, YIPPEE!!

Leonie said...

Thanks for writing this.

Anonymous said...

Help me understand... If the CA indeed recognized gays as a suspect class, then why was Prop 8 passed? It will almost certainly be struck down as unconstitutional in its violation of equal protection guarantees in the state and federal constitutions. Are you sure that the CA ruled conclusively in this fashion? thx much!

viagra online said...

My opinion: I don't care really. I just demand respect from them, to our children, that you should know what your doing it's not right but it's your life I don't care, but respect our children.