LA Times editorial on the Perry case misses an important point

08/30/09 Los Angeles Times:

In this editorial, the Los Angeles Times anticipates that the trial in Perry v. Schwarzenneger will contest "deceptive claims" about same-sex marriage that Prop. 8 supporters made during last year's campaign. So "the federal case on Prop. 8 could get ugly, with every canard about homosexuality being put on trial." But if the contest "hastens the day" of marriage equality, it will have been worthwhile.

The editors also contend that the federal constitution's guarantee of equal protection applies to sexual orientation even without a showing that sexual orientation is "innate" and "immutable." They cite to a "famous footnote in a 1938 Supreme Court case" - footnote four of United States v. Carolene Products Co., 304 U.S. 144 (1938). But I find that the citation misses the point about why Judge Vaugn Walker considers the immutability of sexual orientation an important factual question to answer. Answering the question will help determine the burden the government must meet to justify laws that discriminate against same-sex couples.

Writing for the Caroline Products majority, Justice Harlan Stone acknowledged in the footnote that national, religious, or racial minorities may not able to rely on the "normal" political process for protection against prejudice. When, under these circumstances, the Court reviews the constitutionality of laws that discriminate against "discrete and insular" minorities, the Court may need to conduct a "more searching judicial inquiry" than to consider whether the government has a rational basis for discriminatory laws. The Times editors observe that religious faith - and not just an immutable, minority characertistic like race - can qualify for this more searching test of unconstitutional discrimination.

Because the First Amendment protects religious expression as a fundamental right, subjects of religious discrimination need not show that they belong to "a suspect class" to receive the highest level of constitutional review, known as "strict scrutiny" - a standard of review that evolved in response to civil rights litigation. Under strict scrutiny, government must have more than a rational basis for a discriminatory law. It must have a compelling justification; the law must be narrowly tailored to the government's goals; and the law must represent the least restrictive means of achieving these goals. A "suspect class" is a minority that has historical experience of discrimination, lacks sufficient political power to redress the discrimination, suffers no incapacity in productive contribution to society, and has immutable characteristics, such as national origin or race.

If the Perry plaintiffs can demonstrate that gay and lesbian couples have been deprived a fundamental right (such as privacy or autonomy), or belong to a suspect class, then government must satisfy a high burden of justification for laws, like Prop. 8, that treat them differently than straight couples. To demonstrate membership in a suspect class, the plaintiffs must provide sufficient evidence that gays and lesbians can not change their sexual orientations. Of course, the plaintiffs argue that same-sex couples have a fundamental right which Prop. 8 violates. But they argue that membership in a suspect class - no less than the claim to a fundamental right - also warrants strict scrutiny. And that is the point the LA Times editors miss.