Homosexuality and the law; Gays and lesbians should be

considered a minority group deserving of special protection.

Anonymous. Los Angeles Times [Los Angeles, Calif] 09 Aug 2010: A.14.
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"The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative
classifications based on sexual orientation," Walker wrote.

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In striking down Proposition 8, U.S. District Chief Judge Vaughn R. Walker penned an opinion that was
heavy on findings of fact. In eloquent detail, he described the evidence presented at trial,
and the utter lack of evidence for any of the arguments used to deny marriage to gay and lesbian
couples. Though higher courts may overturn Walker's conclusions, the facts he laid out should remain
an important part of any future legal considerations.
But tucked away in the opinion is something else that could carry weight not only in this lawsuit, as it
moves through the courts, but in other same-sex marriage cases and debates about the rights of gays
and lesbians in general. It is a brief statement addressing whether homosexuals should be regarded
as the kind of minority group that deserves special protection by the courts under the 14th
Amendment of the Constitution.
"The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative
classifications based on sexual orientation," Walker wrote. "All classifications based on sexual
orientation appear suspect."
What the legalese refers to is that laws affecting certain minority groups are held to a higher standard
by thecourts -- a standard known as strict scrutiny -- when they are challenged as discriminatory.
The standard applies to laws affecting minority groups that fall within "suspect classifications,"
but the courts have not been entirely clear about the criteria for receiving this special protection. They
have said, among other things, that such groups must have been historically targeted by
discrimination; must be a "discrete" and "insular" community; must be a minority because of an
unchangeable characteristic; and must have lacked thepower to protect themselves using the political
process. Groups don't necessarily have to meet all four, and other factors could be considered.

Among the classifications that have qualified for this protection are race and national origin.
Could the same apply to sexual orientation?
We think so. There is no doubt that gays and lesbians have historically been singled out for
discrimination, tothe point that until relatively recently, most were too afraid of the repercussions to
reveal information about their sexuality. The vitriol hurled their way during the marriage debate only
adds to the evidence. As a result, they have formed a community that is, in many ways, insular, and
that certainly is seen as a separate, distinctive group.
One of the more divisive arguments about homosexuality is whether it is a mere choice, or inborn.
But theAmerican Psychological Assn. states clearly that although the factors determining sexual
orientation are complicated, it is not a choice and cannot be changed.
As to whether the homosexual community has been a relatively powerless group in the political
arena, thepicture is more mixed. It has not lacked a certain economic clout, but homosexuals have
also sufferedworkplace discrimination. There are few openly gay or lesbian politicians.
Walker did not depend on strict scrutiny to strike down Proposition 8; he said that wasn't necessary
becausethe measure was based on so many unfounded claims that there was not even a rational basis
for it (which isthe lower standard for reviewing a law). Higher courts might or might not bring
in the issue of strict scrutiny; if they do, and homosexuality is found to be a suspect classification, that
would make it extremely difficult for any restrictions on same-sex marriage to pass legal muster. To
meet the strict scrutiny standard, a law must be justified by a "compelling governmental interest" and
must be "narrowly tailored" to achieve that interest, among other things.
By our count, the long history of vilification, housing and employment discrimination, and outright
physical attacks against gay and lesbian people calls for recognition that this group
deserves the utmost protection ofthe courts.
Word count: 634
(Copyright (c) 2010 Los Angeles Times)

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