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Heightened Scrutiny
Do gays and lesbians have political power? Clyde Wadsworth says the Supreme Court's gay marriage decision could depend on the answer.

By Clyde Wadsworth

Now that the Supreme Court has agreed to review the constitutionality of California's Proposition 8 and the federal Defense of Marriage Act, you might think the recent ballot wins for same-sex couples in Washington, Maine and Maryland give the justices more leeway to land on the side of marriage equality. Think again.

Federal judges review discriminatory laws under a much tougher standard -- known as heightened scrutiny -- when the affected minority lacks the political power to defend itself from the majority's prejudices through the normal democratic process. In theory, there's less need for court intervention if the disfavored group can gain the help of lawmakers to protect its members from discrimination.

Enter federal judge Robert Jones, a George W. Bush appointee, who just three weeks after the November election ruled that Nevada's ban on same-sex marriage should not be viewed with heightened scrutiny because, in his words, the "homosexual rights lobby" has "great political power," as evidenced by the recent ballot wins on marriage in other states. Absent heightened scrutiny, the judge held that Nevada's ban was rational, because some heterosexuals would decide not to marry if same-sex couples were admitted to the happily-ever-after club.

The judge said that the "reaction of bigots" wouldn't justify race or sex discrimination, but only because racial minorities and women have historically lacked political power, requiring the courts to apply heightened scrutiny. Never mind our sorry history of anti-gay ballot measures and the 30-plus states that have banned marriage equality. And never mind that Congress has passed several civil rights laws to bar race and sex discrimination, and not only has refused to extend those same protections to lesbians and gay men, but has targeted them for discrimination -- most recently with DOMA.

The recent ballot wins in a few states don't erase the long-standing political vulnerabilities of gay Americans, or the need for the Supreme Court to even the playing field for same-sex couples.

With a Perspective, I'm Clyde Wadsworth.

 

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