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Olson: SCOTUS confirms gays as a class

Timothy Kincaid

June 29th, 2010

In yesterday’s commentary about the Christian Legal Society’s attempts to get recognition by Hastings Law School, I noted that the Supreme Court seems to have identified gay people not in terms of behavior but as a distinct class of people:

The court confirmed its position that attempts to differentiate between behavior and identity (in religious terms, “love the sinner, hate the sin”) as distinctions without difference

While it may be premature and reaching to draw such a conclusion, it appears that the court seems to be in agreement that sexual orientation is a matter of people and not a matter of behavior.

It appears that Ted Olson, lead Theodore Boutrous, counsel in Perry v. Schwarzenegger, made the same observation. He has written a letter to Judge Walker advising him of the court’s decision and encouraging him to consider it in his decision whether to find Proposition 8 to be in violation of the US Constitution.

In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class. Writing for the Court, Justice Ginsburg explained: “Our decisions have declined to distinguish between status and conduct in this context.” Slip op. at 23 (citing Lawrence v. Texas, 539 U.S. 558, 575 (2003); id. at 583 (O’Connor, J., concurring in judgment); Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993)). This confirms that a majority of the Court now adheres to Justice O’Connor’s view in Lawrence, where she concluded that “the conduct targeted by [the Texas anti-sodomy] law is conduct that is closely correlated with being homosexual” and that, “[u]nder such circumstances, [the] law is targeted at more than conduct” and “is instead directed toward gay persons as a class,” id. at 583 (O’Connor, J., concurring in judgment) (emphasis added). See also Romer v. Evans, 517 U.S. 620 (1996) (treating gay and lesbian individuals as a class for equal protection purposes). The Court’s holding arose in response to Christian Legal Society’s argument that it was not discriminating on the basis of sexual orientation, but rather because gay and lesbian individuals refused to acknowledge that their conduct was morally wrong. The Court rejected that argument, holding that there is no distinction between gay and lesbian individuals and their conduct.

Poor ProtectMarriage. Almost all of their witnesses had to be pulled after failing miserably in depositions (one was called as a witness for the plaintiffs). Their sole witness was unqualified and actually hurt their cause. They had to change their “reason” for the proposition time after time (including within closing arguments). And now their argument against heightened scrutiny just skipped out the door.

If they weren’t defending discrimination based on animus and founded in a smug assumption of superiority, I might almost feel sorry for the supporters of Proposition 8.



June 29th, 2010 | LINK

And yet I doubt all the gaping holes in their case will sway Scalia, Alito, Thomas, or Roberts. They’ll just concoct a more nuanced pile of BS to replace the garbage offered by Protect Marriage.

Keep your fingers crossed that neither Kennedy or Kagan screws us over for generations.

Ben in Oakland
June 29th, 2010 | LINK


Lindoro Almaviva
June 29th, 2010 | LINK

I can imagine the line of bricks that lines their office spaces, parking lots and conference rooms…

Paul in Canada
June 29th, 2010 | LINK

Defining GLBTQ as a ‘class’ was the basis for recognizing same-sex rights in Canada.

Timothy Kincaid
June 29th, 2010 | LINK


I’m not even sure that those four will go all go for ProtectMarriage’s argument. We cannot assume that they will always take the anti-gay position just because it is anti-gay.

Recall that only Thomas dissented in Roe v. Reed.

June 30th, 2010 | LINK

This is some of the best news lately.

And thanks Timothy for the reminder.

Althought the court has reversed previous decisions of previous Supreme Courts in other unrelated matters, it might be more difficult to reverse themselves in more recent matters where they seem to have been inclined to deem Gays as a class.

Of course we are all understandably impatient, but I just want to live to see it.

June 30th, 2010 | LINK

What is mind-boggling to me is the fact that so many straight people still CANNOT see the double standard they typically apply. They know beyond doubt that they themselves as straight people are not what they do. They are not the equivalent of their conduct. How is it they fail time and again to apply this to us gay people? My conduct does not make me who I am. It is simply an out-flowing, an expression of what is on the inside. It is what is on the inside that places me into another class or constituency.

Laura Kanter
June 30th, 2010 | LINK

The very fine and hopefully promising letter was written to Judge Walker by Theodore J. Boutrous Jr., one of the other attorneys for the plaintiffs in the Prop 8 Fed. trial, not by Olson.

Timothy Kincaid
June 30th, 2010 | LINK

Thanks, Laura. Corrected.

Jason D
June 30th, 2010 | LINK

Rick, because they think we’re confused straight people. Or sick straight people.

I use this comparison.

I am not a straight house covered in gay paint. I am a gay house. If you removed my homosexuality, I would have NO sexuality at all.

I don’t see how letting gay people get married is ANY different than braille added to signs, elevator floor numbers, or wheelchair accessible stalls.

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