[quote]BostonBarrister wrote:
Essentially, the personal mores of the judges were so offended by the amendment to specifically allow discrimination that 5 justices voted to overturn. Yet in the same term, the USSC refused to force the Boy Scouts to allow gay scout leaders, and again refused to apply “suspect class” classification to homosexuals.
endgamer711 wrote:
Well Duh! The BSA is a voluntary association, while a government is not.
The USSC delays to give sexual orientation the suspect class status for good reason. Once that is done, the fat lady has sung. I expect the court avoids this because, with the lesson of Roe v. Wade in front of it, far from being inclined to activism, it would rather see the heavy lifting done in the legislatures (those that don’t go completely off the rails). But there is only so much time for this. Pretty soon science will provide the details to show why orientation is very far from a lifestyle choice. At that point, the jig will be up.
The recent work on pheromones however does not cut at the issue of causation, not quite. It does show that orientation is very deeply rooted. From this work it is pretty clear that after you have gotten wired up as homosexual, it is going to take a lot more intervention to change that than therapy groups or getting prayed over in relays. Moreover, without adjustment of the underlying physiology, any change in behavior can bring only misery, not happiness (other than the happiness of getting a bunch of red-necks off your back, I suppose).
So is it actually true that gay people have the choice of marrying outside their gender? From what we already know, certainly not. At any rate, not consistent with that much ballyhooed pursuit of happiness.
Is there a gay gene? Almost certainly not, because who turns out to be homosexual seems to depend only very indirectly on heredity. It shows up in all families. Does the non-existence of a gay gene really matter? No. Even if orientation is not settled at conception, suppose the matter is found to be determined very early, say in utero, or by the tender age of six months, or even four years, and the developmental mechanisms are understood in detail. Now what? Fear and loathing is going to have a real hard time, that’s what.
Change happens. Deal with it or not. Your choice.[/quote]
Yes endgamer, that is true – though the “freedom of association” interpretation at issue in the Boy Scouts case would have been a slam dunk, based on USSC precedent, for the plaintiffs had gays been deemed a “suspect class,” just as it was when private clubs such as Rotary Club were forced to admit women members.
And your presentation of the science is interesting, and it essentially mirrors my understanding, such as it is – basically that it’s highly likely that there isn’t a particular “gay gene,” but that some environmental factor – maybe in utero, maybe not – can create an essentially unchangable predilection toward homosexual attraction. This then interplays with various environmental factors in life, and depending on the strength both of the initial change and the environmental factors, you get an effect of varying strengths.
Anyway though, I think you’re right in that if “gayness” were proved to be an indelible, unchangable fact that people could not control or change – like gender or skin color – then it would be a much smaller jump to categorizing gays as a “suspect class” for the purposes of Equal Protection anaylsis.
However, there are a couple other problems – of various strengths – that would come up in making that jump, at least if the current analytical factors are applied. The first problem is the nature and strength of the historical discrimination that gays have faced. Has it been strong enough that “fix it” measures should be allowed to trump freedom of association rights, as happens with blacks and women? Or to overcome governmental prerogatives on how it spends its money? I don’t think so, though others would obviously disagree.
To me, there is a difference in kind between the historical legal discrimination gays faced against their behavior (criminalization of sodomy) versus the legal discrimination blacks faced for existing, or that women faced in being excluded from certain economic and social opportunities for existing. And I definitely don’t think that being denied tax benefits rises to that level…
The second problem, which I actually touched on above, is that in the USSC’s “suspect class” analysis, it is generally required that the discrimination suffered by a suspect class is required to come from some fact of their existence – like skin color or gender – that can’t be hidden and is immediately obvious to a casual observer. The reasoning was that differences of this nature made discrimination based on those differences too easy hide (because people could make up other reasons to justify it). “Gayness,” as it were, doesn’t fit that criteria. So it would have to be dropped or modified.
And dropping or modifying that criteria, along with the downgrade of the level of historical discrimination faced by a “suspect class,” would open up a whole new can of worms – the fatties would stampede for suspect class recognition, as would others – maybe including people whose behavior is currently criminal, such as child molesters (who would fit a straightforward application of the above criteria if there were no exception for criminals) and the stupid (genetically determined intelligence? I think that’s an easier case to make than indelible “gayness” at the moment).
So I don’t know that gays will become a suspect class. Perhaps the USSC will create some new category to protect gay behavior from subjecting people to any discrimination whatsoever, no matter how small – but that would definitely require stretching the Constitution beyond our current understanding, and would engender a new round of battling on judicial activism.
