Prop 8 Trial

In case anyone is out of the loop on this, California’s Proposition 8 is being contested by the Supreme Court.  What is contested right now, is whether “gays are a suspect class” defined here:

the U.S. Supreme Court has a four-part analysis:

(1) Are gays a “discrete and insular” (i.e., identifiable) minority?  Nobody’s really arguing this point.

(2) Do gays have a history of discrimination?  Again, we find this truth to be self-evident.

(3) Are gays politically powerless so as to be in need of assistance?  That’s why the Prop 8 side — when they cross-examined Yale historian George Chauncey — kept pointing out how gays have become more politically powerful in recent years, that Nancy Pelosi is a “strong ally” and that “Brokeback Mountain” and “Will & Grace” are popular.  On the marriage issue, however, a counterpoint — which I wish our side had made – is that 31 states have passed anti-gay amendments, along with DOMA on the federal level.  At least on the issue of marriage (which the federal courts have found to be a “fundamental right”), gays are politically vulnerable.

(4) Is being gay an immutable trait?  ”Immutable” means the identifiable trait cannot be changed – like race.  One thing I found interesting about Dr. Tam’s video testimony was when he was asked about civil rights: “I believe civil rights to be about skin color — something you can’t change [my emphasis].“Homophobia is truly on trial here, because the question is whether the Court believes that gays are just “born that way” or they can “be converted.”  Alternately, however, the courts have recognized religion to be a “suspect class” – even though people can change their religion.  But then the question is whether it’s a trait so key to a person’s identity that it would be wrong to make them change.  Not if gays couldchange — but whether gays should change.

To date, only three State Supreme Courts have recognized gays as a “suspect class” — California, Iowa and Connecticut — and not co-incidentally, they all ruled in favor of gay marriage.  Massachusetts also ruled for gay marriage, but what’s interesting about that case is they never said gays are a “suspect class.”  The Court said we don’t even need to go there — because there is no possible rational basis to deny gays to marry.  Of course, all these cases were about an individual state’s constitution — not the federal.

What’s particularly interesting, and this has been popping up everywhere, is that the Prop 8 side has been citing “‘Brokeback Mountain’ and ‘Will & Grace’” to show that homosexuality is popular(?).

I think the real problem here is that homosexuality is not an immutable trait.  For all the personal bis present here, we know some things.  In other cultures where homosexuality is not stigmatized, it is often expressed in less concrete terms (ancient Greece for example, but modern evidence exists as well).  Identical twins are not always both homosexual when one is, this suggests it is not an absolute biological fact.

There’s fuzziness here too.  Still, it’s thought-provoking and encouraging.  Especially when many legal experts think this may be the next “Brown v. Board of Education”.