It occurs to me that some of y'all may be as unclear as I've been on why the plaintiffs in Perry v. Schwarzenegger (the Prop 8 trial) have been making some of the points they've been making. [Added later: especially all the stuff about whether gays and lesbians are politically powerless or not.]
So here's an attempt at a backgrounder for one aspect of the case. Note that most of what I think I know about this comes from Wikipedia; if I'm wrong about anything here, I hope someone will correct me.
The core issue underlying many questions of whether a given discriminatory state law in the US is constitutional is the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. It says that "no state shall . . . deny to any person within its jurisdiction the equal protection of the laws."
So when a state enacts a discriminatory law, people affected by that law can go to Federal court to try to get that law overturned under the Equal Protection Clause.
[I originally had a discussion here of the criteria that determine whether a group is a suspect class; I got that information from Wikipedia. ~Elliot pointed out that some of the information was dubious. After doing some further research, I ended up rewriting that section of the Wikipedia entry. I'm therefore reluctant to let my misleading quote of the old material stand. So although I hate to make significant changes to an entry after publication, I'm doing so here: about five hours after my original post, I'm removing some material that was here and replacing it with, I hope, more accurate info.]
The court then decides what category the group of affected people falls into, using a combination of various criteria. In particular, the court determines whether the people affected are a "suspect classification" (often shortened to "suspect class") deserving of special protection. Here's Wikipedia's discussion of those criteria (I wrote most of this discussion, based on a book, some Supreme Court decisions, a few websites, and bits of an earlier Wikipedia list of criteria):
Some of the criteria that have been cited include:
- The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes.
- The group is a "discrete" or "insular" minority.
- They possess an immutable and/or highly visible trait.
- They are powerless to protect themselves via the political process.
[End of edited material.]
If a group doesn't quite qualify as a suspect class, the court may determine that they're a quasi-suspect class, or that they're not a suspect class at all.
Depending on which category the group falls into, there are three different levels of scrutiny that the court may choose to apply to the discriminatory law:
|Discriminated class||Level of scrutiny||Description of scrutiny|
|Non-suspect classification||rational basis review||Considers whether the law is "rationally related" to a "legitimate interest" of the government. In most cases where this level of scrutiny is applied, the law is allowed to stand.|
|Quasi-suspect classification||intermediate scrutiny||Considers whether "the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest." (Wikipedia)|
|Suspect classification||strict scrutiny||Considers whether there's a compelling governmental interest, whether the law is narrowly defined, and whether it's the least restrictive means of serving the interest.|
So that's one part of what's going on in the Prop 8 trial. The plaintiffs are attempting to show that GLB people in the US satisfy those suspect-class criteria. If the Federal court finds that GLB people are indeed a suspect class (as the California Supreme Court found a while back), then Prop 8 must be subject to strict scrutiny, and can stand only if it's for a compelling governmental interest and is narrowly defined. (Of course, a court may find that GLB people are a suspect class, but still find that Prop 8 withstands strict scrutiny. Wikipedia says that "laws survive strict scrutiny over thirty percent of the time.")
(Note that Federal standards are the minimum standards that states must apply; state courts can also apply stricter standards than the Federal ones.)
In particular, this is why the plaintiffs have been trying to show that GLB people are "powerless" in the political process, and why the defendants have been trying to suggest that GLB people (especially in California) have vast amounts of political power, and powerful protection from straight politicians.
(Reminder: you can read a quasi-transcript of the whole proceeding so far at firedoglake.)
The wacky part of all this, to me, is that it feels like it comes down to the Prop 8 proponents saying "Gays aren't widely discriminated against, so it's okay to pass a law that discriminates against them."
Which sounds silly to me when I put it that way, but I think that sort of argument is kind of built in to the "suspect class" system. Wikipedia says that (for example) age, disability, political preference, and political affiliation are not considered (by Federal standards) to be suspect classes, so laws that discriminate on the basis of those things are subject only to rational-basis scrutiny. In other words, if the Federal court can think of some potential legitimate government interest the state might have in passing such a law, then the law is allowed to stand.
[Added later: Does that mean that a law barring elderly people from marrying would be subject only to rational-basis scrutiny? I'm not sure.]
I can see the underlying idea here: if a group is subject to widespread systemic prejudice, then the US government has a stronger-than-usual interest in making sure that states don't pass laws discriminating against that group, even if the state claims to have some vaguely legitimate interest in such a law. (And, on the flip side, the US government doesn't want to be interfering in state law except in really important situations, such as those in which a law discriminates against a group that's already subject to widespread systemic prejudice.)
But it seems weird to me that it's possible to argue that since the discrimination against a group isn't really all that bad, it's okay for a state to discriminate against them.
P.S.: The New York Times's Bay Area blog has a video of the press conference that came after the close of arguments the other day. Fifteen minutes of awesomeness by plaintiff lawyers David Boies and Theodore Boutrous, followed by fifteen minutes of smug repellence from defense lawyer Andy Pugno. (Might I be biased? Just a teensy bit?) Worth watching the first half; I watched the second half out of a misplaced sense of duty to hear the opposition, but there's no real need to do so. Pugno's argument boils down to "The plaintiffs made a lot of good arguments, but the points they made are irrelevant to the legal issue at hand, so we didn't bother wasting time rebutting them."