16 May 2008
There is no persuasive basis for applying to statutes that classify persons on the basis of the suspect classification of sexual orientation a standard less rigorous than that applied to statutes that classify on the basis of the suspect classifications of gender, race, or religion. Because sexual orientation, like gender, race, or religion, is a characteristic that frequently has been the basis for biased and improperly stereotypical treatment and that generally bears no relation to an individual’s ability to perform or contribute to society, it is appropriate for courts to evaluate with great care and with considerable skepticism any statute that embodies such a classification. The strict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.From yesterday's California Supreme Court ruling on gay marriage.
As the lawyers and legal analysts point out, this moves LGBT discrimination—well, LG discrimination, at least initially—into the realm of strict scrutiny and out of the domain of rational basis. The presumption, at least in California, is that discrimination on the basis of sexual orientation, is suspect.