Federal Challenge to Prop. 8, Explained

Gabriel Arana

November 23rd, 2009

I have a feature in The American Prospect‘s December issue on the federal challenge to Prop. 8 — and what’s at stake.

The Gay GamblePerry v. Schwarzenegger indeed asks the “ultimate question” of whether gays have a federal right to marry, but because the case is alleging that Prop. 8 violated the equal-protection clause of the U.S. Constitution, the federal court decision will have implications for gay Americans in nearly every arena of public life, from housing to parenting to military service. The court is set to consider questions as wide-ranging as what it means to be gay and whether it affects one’s contribution to society. It’s not just marriage rights on trial; it’s homosexuality itself.

As you can tell, the scope of the trial is pretty big, which is why the established LGBT community was so hesitant to bring the case in the first place. Part of why the case is so important is that it is alleging that Prop. 8 violates Equal Protection. The law here is a bit strange, and interesting: you essentially have to show that gay people are a distinct and well-defined group before they can be treated just like everyone else.


November 23rd, 2009

Very nice article, Gabriel. I especially like this part:

“Prop. 8’s defenders seem most self-assured when speaking in broad axioms. According to the motion filed by the defense in Perry, ‘the purpose of marriage [has] always been to promote naturally procreative sexual relationships,’ and ‘every civilized society in recorded history [has] limited marriage to opposite-sex relationships.’ But when asked concrete questions, as the defense was at a pre-trial hearing in October, lawyers have been hard-pressed to come up with an answer.”

That’s what I want: no more think-of-the-children attack ads, no more endless debates over God’s design for marriage, no more baseless fear-mongering. Just concrete answers to concrete questions.


November 23rd, 2009

Very good article. I guess my only criticism is the fear of a “backlash” if the Supreme Court rules with us. What’s that fear about? There’s no way our opponents can muster the two-thirds of both chambers of Congress and three-quarters of state legislatures that it would take to pass a contravening constitutional amendment. If the Supreme Court says we’re a suspect class, we win, and the victory is set in stone forever.

Timothy Kincaid

November 23rd, 2009

Gabe, good article


November 23rd, 2009

God help us if we lose… That will be a huge setback. I’m not a risk taker hence why i’m not the one bringing the lawsuit. But best of luck to them. I hope they know what they’re doing…


November 23rd, 2009

Argh, and this is what annoys me about “religion as a suspect class”:

“… the defense argues, homosexuality is not an unchangeable characteristic.
Eskridge calls the debate about whether homosexuality is immutable a “lavender herring.” He points out that religion is fairly easy to change, yet Catholics and Jews are considered protected minorities.”

In my opinion, the issue of “fluidity” or “steadfastness” is of no relevance. If religion is considered a “suspect class,” but religion can clearly be chosen, then why the hell shouldn’t sexual orientation be afforded the same treatment?

Regan DuCasse

November 23rd, 2009

All good points, folks. I’m concerned that SCOTUS has six Catholics on it, last I heard.
And there seems to be no reason to think that their consciousness regarding public opinion and their own religious doctrine won’t color their scrutiny of the issue.

I don’t trust the justices. They don’t have a lot of precedent to work with.

I personally have been very concerned about the Constitutional protection from tyranny of a majority on this precedent for starters.
After that, what gay people can expect as far as those protections are to go.
That once this fundamental protection is ignored or removed, it creates other vulnerabilities for gay citizens who are otherwise forced to participate in the responsibilities of being in this country, but none of the rights and protections.
This is unfair, and requires gay people live unrepresented, something that on it’s face is illegal.

Gabriel Arana

November 23rd, 2009

Well, Johnathan, I think that’s exactly his point.


November 23rd, 2009

Gabriel, but further, even in the 1964 Civil Rights Act, and before that, WHY is religion afforded a higher suspect class, when it is not an immutable characteristic, yet sexual orientation is treated with such disdain?

I am NOT suggesting one backtrack on religious protection. At the same time, I would love to hear any of the social conservatives on the bench (Alito and Scalia especially) argue for their continued support of religious protections against discrimination (“Christian immutiability”) while suggesting “them ‘mos” aren’s as lucky in the same breath.

Yet, fundamentalist groups claim they are being targeted for discrimination in the United States?


November 23rd, 2009

Isn’t one’s practiced sexual orientation in itself, a statement on one’s religious beliefs (as in, it’s not a sin to you) or lack thereof? Therefore all anti-gay discrimination is at its core religious discrimination.

Timothy Kincaid

November 23rd, 2009


Today religion is seen as mutable and a selection of the worshiper. You just pick which church you want to be affiliated with, and go there. This was not always the case.

For portions of our nation’s history, religion was something you were born into. It was often as much a statement of social class and family history as it was of personal faith.

One didn’t simply “choose” to become Episcopalian or Presbyterian. If you moved to a new town, you took a letter of recommendation from your minister to assure your new church that you were of good character.

And quite often religious persecution was really based in xenophobia or ethnic bigotry. During periods of mass immigration, Catholicism was both a means of exclusion and a means of inclusion for jobs.

Religion may seem to be entirely optional, but the reason for inclusion in non-discrimination laws is not quite so simple.


November 23rd, 2009

Timothy and Gabriel,

Thank you both. I just wish, then — sometimes with futility — the very people holding the anti-gay animus based on religious bases would search their souls and remember their own histories, and realize we aren’t that different after all.

Richard W. Fitch

November 23rd, 2009

Just a note on religious mutability. Our previous president was raised as an Episcopalian, but when he became “born again” he switched to the Methodist church. OK – is choice of religious affiliation more deserving of being protected than sexual/gender orientation?

Emily K

November 23rd, 2009

The “religion as a suspect class” validity is well demonstrated when applied to Judaism, for example, because our biological inheritance is very closely tied to our religious inheritance: right down to the fact that Jewish sects have their own commonly occurring genetic diseases.

It really is about social identity as well. When someone is out to murder a Jew, they’re more likely to be able to isolate and target the one wearing the big black hat with fringes dangling down the sides of his pants, as opposed to the one who is driving on friday night and doesn’t have a beard.


November 23rd, 2009

“the defense argues, homosexuality is not an unchangeable characteristic.”

I don’t see how that would be hard to refute. The extensive research of professionals in the fields of science and psychology v. the dubious claims of religious groups; which side holds more water?


November 23rd, 2009

Gabriel, I disagree with your analysis. It is unlikely that it would play out in such a broad way. Courts, especially the U.S. Supreme Court, have a gift for dodging ultimate questions, and ruling on very narrow grounds, thus limiting the scope of their rulings.

Also, I think there is some confusion on the issues. This suit is about the equal protection clause of the 14th amendment, which relates to government action. Private sector housing and employment anti-discrimination statutes were enacted by Congress under their power to regulate commerce. This suit would not affect those issues at all, legally speaking.


November 23rd, 2009

“‘the defense argues, homosexuality is not an unchangeable characteristic.’

I don’t see how that would be hard to refute.”

Actually, it’s very easy to refute: there are many people who formerly were in same-gender relationships who are now in dual-gender relationships. Research suggests that *sexuality* as a personal attribute is not mutable, but our opponents’ definition of homosexuality – as a “lifestyle” – is mutable.

I’ve often thought if I had been born into a repressive society and my choice was to act straight or be imprisoned/executed/cast out/etc., I’d almost certainly act straight. Many people throughout history have lived lives without romantic love. But there are many people who cannot pretend to be straight, perhaps even at the peril of their lives. How our personal attribute of sexuality translates into our “lifestyle” is such a squirrley thing that the mutability issue is a complete red herring – when we go down this path we’re just playing our opponents’ game.

It should NOT matter one whit to the law whether we can pretend to be straight or not (i.e., can homosexuals be “cured”), what should matter is our right be protected by the state as much as any other person.


November 23rd, 2009

(and actually, I do think that our opponents are right when they say that “making homosexuality more acceptable will make more kids homosexual” . . . not that we can change people’s sexuality, but if people can choose who to openly love more people will express their true sexuality – oh horror!)


November 23rd, 2009

My lawyer friend tells me romantic orientation can’t be compared equivalently to religion for several reasons, starting with the fact that the law acknowledges different levels of categorization where religion and sex are highest and race and nation of origin are lower. Orientation, which doesn’t exist yet in the eyes of the law, is lower but could only hope to get as high as race and origin for reasons I don’t understand.

I don’t know how the law views race, but race is not a well defined group at all. If some of your ancestors are black and some white, what ratio is required to make you make you one or the other? Is “mixed” a race? Is African different from African American? Is an albino with black parents white? Is a light skinned South African immigrant African, white, or both? Orientation is relatively simple. There, the only point of debate is bisexuality. My lawyer friend also tells me the law takes the APAs and AMA very seriously and they have defined orientation without debate.

I have a lot of confidence in the courts to be honest and professional and not listen to the tyrannical majority. Remember Brown v Board of Ed? Loving v Virginia? Both were extremely unpopular but they followed were the law led them. I wish every branch of government could be as fair and smart as the Judicial Branch. My lawyer friend is morally against marriage equality but believes that legally it’s a no-brainer that the equal protection clause demands it. Given his anti-gay bias, that says a lot. He thinks if SCOTUS hears it, they have to side with the prosecuition, but he thinks they’ll refuse to hear it for that very reason.

Gabe Arana

November 23rd, 2009

Hey Mike,

There are a number of ways it could play out — the equal protection claim is the broadest, of course, but I also mention what happens if both the equal protection and due process claims fail. A win of these grounds would have much narrower implications.

Also, I mean that GOVERNMENT will not be able to discriminate vis-a-vis employment (we were very careful to word it this way). As you mention, the 14th amendment only applies to state actors — you would still need ENDA-like legislation to prevent private discrimination in employment.

Of course I would have liked to go into all these details, but it’s tough when one is writing for a general audience and when space is limited.



November 23rd, 2009

“It really is about social identity as well. When someone is out to murder a Jew, they’re more likely to be able to isolate and target the one wearing the big black hat with fringes dangling down the sides of his pants, as opposed to the one who is driving on friday night and doesn’t have a beard.”

Those are still mutable characteristics. A person could easily choose not to wear a big black hat or to shave his temples; the fact that his fashion choices are informed by religion supports the notion that religion is mutable.


November 24th, 2009

Just recently on MSNBC’c Chris Matthews, Bishop Tobin stated that it is the duty of elected politicians who are Catholics to uphold God’s law, and if not their soul is at risk. There are 5 Catholics on the Bench! If a Catholic Bishop is demanding political adherence to the Vatican by the those in government, do we have a case to demand the Catholics recuse themselves from this upcoming case? Think about it, if they are true believers think about the internal conflict: if they support equality they will go to hell/ if they don’t heed the 14th Amendment they soul may be saved. If I was a true believer I would do all I could to interpret the 14th A in such narrow and restrictive terms to exclude GLBT people in order to save my soul. The conflict that the Catholic Church is creating needs to be addressed and by better minds than myself. I think this could be huge and is an issue that we need to raise because if we do not raise it, nobody will!

George Bingham

November 24th, 2009

I hope the SCOTUS can separate their faith from their judgments on secular law. That’s a pretty basic requirement.


November 27th, 2009

“The “religion as a suspect class” validity is well demonstrated when applied to Judaism, for example, because our biological inheritance is very closely tied to our religious inheritance: right down to the fact that Jewish sects have their own commonly occurring genetic diseases.”

Speaking about it, some people (including many Jews themselves) see Jews as an ethnicity rather than a religion. Einstein didn’t practice Judaism and rejected belief in the Abrahamic God, but is regarded by everyone as Jewish. For the Nazis, the sole fact of having a Jewish grandparent made you a Jew, regardless of your own beliefs.

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