NYT: Strike Down Proposition 8

I recently stated that if the California Supreme Court upholds Proposition 8 it will further enshrine a very dangerous precedent for the elimination of minority rights by a bare majority of voters. Two articles have made me think even more about the dangers posed as well as a possible counter offensive against the Christianists and Mormons. The first is a an editorial in the New York Times that supports the striking down of Proposition 8 based on the use of the wrong process to amend the California Constitution. The second is a column in the New Republic that rightly argues that RELIGION is not immutable and, therefore, applying the Christianists own anti-gay arguments, religion should not be a protected classification. First, here are highlights from the NYT:

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The approval of Proposition 8 in California, a constitutional change designed to prohibit marriage between couples of the same sex, was not just a defeat for fairness. It raised serious legal questions about the validity of using the Election Day initiative process to obliterate an existing right for a targeted minority.

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These deeper questions were largely lost during the expensive campaign by proponents of Proposition 8. Essentially, in their rush to enshrine bigotry in the State Constitution, they circumvented the procedure specified in that same document for making such a serious change. Now, the state’s top court, which has agreed to hear the legal challenge to Proposition 8, has the unpleasant duty of tossing out a voter-approved ballot measure.

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The court has correctly determined that the equal protection clause prohibits governmental discrimination on the basis of sexual orientation, which extends the right of marriage to same-sex couples. But the issue goes well beyond gay rights. Allowing Proposition 8 to stand would greatly limit the court’s ability to uphold the basic rights of all Californians and preclude the Legislature from performing its constitutional duty to weigh such monumental changes before they go to voters.

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The justices’ job is to protect minority rights and the State Constitution — even when, for the moment at least, it may not be the popular thing to do.

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In their various briefs opposing the striking down of the sodomy laws in Lawrence v. Texas and many other cases concerning gay rights, the Christianists ALWAYS argue that sexual orientation is a choice - hence why the fraudulent "ex-gay" programs are so important to Focus on the Family and similar dishonest organizations - and not immutable and, therefore, not worthy of being a protected class under the equal protection provisions of the state and U. S. constitutions. In his column, Richard Just in the New Republic correctly argues in part as follows:
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[Y]ou raise what I think is really the core of our disagreement: whether gays and lesbians are entitled to constitutional protections similar to those for racial minorities and women--and whether laws that discriminate against them should therefore be subject to heightened scrutiny by courts. This was the main legal basis for the Connecticut and California decisions. You are correct that the immutability of a trait is not sufficient for showing that a group deserves heightened protection. But neither court treated it that way. In fact, both courts downplayed this factor in their decisions, focusing instead on other criteria for determining whether a group is entitled to heightened protection: Has there been historical discrimination against the group? Does sexual orientation affect a person's ability to contribute to society? And (in the case of Connecticut's court, though not California's) does the group lack political power? The answers to the first two questions are obvious, and, as for the third, . . . If gays were indeed politically powerful, we wouldn't be having this conversation. . .

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As for immutability: Neither court found that homosexuality was immutable, even though most people who study the subject believe that it is. Instead the justices reasoned that--to quote the California court--"[b]ecause a person's sexual orientation is so integral an aspect of one's identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment." In other words, the justices treated it much like religion--which, as you note, is considered a suspect classification, and therefore invites heightened scrutiny from courts.

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Since the Christianists want only immutable traits to justify special protections, let's pass amendments to state constitutions removing protections for say the Mormons. Or maybe evangelical denominations. After all, these folks can easily change their denominations - far more easily that us gays can change our orientations. Thus, under THEIR own arguments, they are not entitled to constitutional protections. True, the passage of such amendments would likely never happen, but nonetheless the argument needs to be increasing thrown back in the faces of the homophobic religious denominations. We seriously need to put the bigots on the defensive so that they cannot be aiming sustained attacks on us.