Posted by
Asp on Friday, June 20, 2008 9:56:07 PM
In the middle of a basketball game a player fouls out. As the coach goes to replace him, the official announces that the expelled player cannot be replaced because in soccer, replacement of an expelled player is not allowed. How many basketball fans would tolerate this? None! If this is not tolerated on the basketball court, why is it tolerated from the legal courts? The short answer is that more Americans know the rules of basketball than know the rules of our country, our state.
How did The Court justify their holding? Lets look at the majority opinion.
In In Re Marriage Cases (43 Cal.4th 757)
The issue is one of first impression in California, however, and for
the reasons discussed below we conclude that sexual orientation should
be viewed as a suspect classification for purposes of the California
Constitution’s equal protection clause and that statutes that treat
persons differently because of their sexual orientation should be
subjected to strict scrutiny under this constitutional provision.
Strict scrutiny is the highest level of scrutiny. It is exceedingly difficult to overcome. By using this level, The Court almost guarantees that their decision will not be overturned. To reach the level of Strict Scrutiny, they need to find homosexuality to be a "suspect class." Or do they.
In addressing this issue, the majority in the Court of Appeal stated:
“For a statutory classification to be considered ‘suspect’ for equal
protection purposes, generally three requirements must be met. The
defining characteristic must (1) be based upon an ‘immutable trait’;...
How does the court define immutability?
Sex, like race and lineage, is an immutable trait, a status into which the class members are locked by the accident of birth. (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1)
It should be noted that not a single geneticist has ever considered homosexuality to be genetic, like the color of eyes or the color of skin. The court gets around this inconvenience by simply discarding it.
... immutability is not invariably required in order for a characteristic
to be considered a suspect classification for equal protection
purposes. California cases establish that a person’s religion is a
suspect classification for equal protection purposes (see, e.g., Owens
v. City of Signal Hill (1984) 154 Cal.App.3d 123, 128; Williams v.
Kapilow & Son, Inc. (1980) 105 Cal.App.3d 156, 161-162), and one’s
religion, of course, is not immutable but is a matter over which an
individual has control. (See also Raffaelli v. Committee of Bar
Examiners (1972) 7 Cal.3d 288, 292 [alienage treated as a suspect
classification notwithstanding circumstance that alien can become a
citizen].)
How on point are these cases that The Court relies on? Each one concerns the regulation of participation in a business and in each, The Court held that the appropriate test is not strict scrutiny but rational basis. Only Raffaelli involves a suspect category, that of allienage, and even then the rational basis is the appropriate level of scrutiny. They kept looking.
Because a person’s sexual orientation is so integral an aspect of one’s
identity, it is not appropriate to require a person to repudiate or
change his or her sexual orientation in order to avoid discriminatory
treatment. (Accord, Hernandez-Montiel v. I.N.S. (9th Cir. 2000) 225
F.3d 1084, 1093 [“[s]exual orientation and sexual identity . . . are so
fundamental to one’s identity that a person should not be required to abandon them”]; Egan v. Canada, supra, 2 S.C.R. 513, 528
[“whether or not sexual orientation is based on biological or
physiological factors, which may be a matter of some controversy, it is
a deeply personal characteristic that is either unchangeable or
changeable only at unacceptable personal costs”].)
In
Hernandez, the court found that it could
rationally be assumed that a man who had been persecuted for being a transvestite in his home country would be persecuted if returned to his home country. So they finally turned to Canadian case law
, Egan, which ignores immutability because, under Canadian law, immutability is not an element and so need not be considered. Using Canadian law to address a US State issue is equivalent to applying soccer rules to basketball.
The Court played fast and loose with the rules, adjusting them as they went along, in order to obtain their desired result regardless of the law, knowing that the majority of the public had no interest in the opinion, only the result. But this is only the beginning of the story.
What is a "stay," and what might the ramifications of refusing to grant a stay?
Who has the authority to make or change a law, the judiciary or the legislature?
If the judiciary orders the legislature to change a law, what happens if the legislature doesn't?