Scrutinizing the gays
I’m a regular follower of the legal fights that gay rights groups are working on, so I’ve been particularly interested in the Perry case. For those of you who don’t know, it’s a challenge to Prop 8 and is led by Ted Olson and David Boies, who are two all stars in the legal world (And opponents in Bush v. Gore). Today, Judge Walker denied a motion to dismiss the challenge, which was a big win for the gay rights side.
The Judge brought up the question of what level of scrutiny to apply to sexual orientation cases. Basically, when the government passes laws that discriminate against certain groups, courts apply different standards of review depending on what group it is. So, if the government is discriminating against a racial group, the court will apply strict scrutiny (meaning that the government needs a really compelling interest to discriminate). For gender, it is a lower level of review called intermediate scrutiny. For most other classifications there is a low level called rational basis review.
The Supreme Court has never stated what level of scrutiny to apply to sexual orientation. The higher the level, the harder it will be to discriminate against the gays. So we’d hope for at least the intermediate scrutiny that is given to gender. As of now, though, it’s never been decided by the top Court. So we’ll see!
