This one is for my fellow Americans. If you want to skip ahead to the really exciting part of today’s ruling out of Second Circuit Court of Appeals, just click here.
The court gives four reasons why anti-gay legislation (such as DOMA) should be subjected to a higher degree of judicial scrutiny than ever before: they have suffered historical discrimination, they are nonetheless solid citizens, they form a discernible group (especially when married), and still suffer some degree of political disadvantage.
The court backs up each of these claims in some detail on pages 24-34, and concludes that “the class is quasi-suspect (rather than suspect) based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect.”
Ok, so maybe that sounds a bit weird. Who wants to be (quasi) suspect? Well, it’s actually good news. In American jurisprudence, there are basically three levels of scrutiny that courts may apply to a group being legislated against: rational basis (low), intermediate scrutiny (medium), and strict scrutiny (high). Quasi-suspect groups fall in the middle, between suspect groups and everyone else.
The Second Circuit has essentially laid down the gauntlet to SCOTUS to explain why gays and lesbians do not deserve to be upgraded, as a group, from minimal to medium levels of watchful judicial protection from legislative discrimination. I strongly commend this decision, and suspect that it bodes well for the future of equal rights in the U.S.
Cue the right-wing whinging about judicial activism. 😉
