It's fascinating that they only used rational basis instead of intermediate or strict scrutiny. While precedent currently places sexual orientation in the realm of rational basis, I think that an extremely strong case could be made that a law concerning the right of gays to marry involves a suspect classification. All of the following criteria appear to be true:
- The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes.
- The group is a "discrete" or "insular" minority.
- They possess an immutable and/or highly visible trait.
- They are powerless to protect themselves via the political process. (In this case, they are subject to the tyranny of the majority.)
As far as I know, courts in the past have ruled that being gay is not an "immutable or highly visible trait." There were however some recent decisions that questioned that rationale.
Because it's not highly visible as long as you stay carefully in the closet....
It reminds me of how "don't ask don't tell" seems fairly reasonable until I imagine a bunch of soldiers away from home sitting around together, waiting for things (which they do an awful lot). Then I try to imagine navigating hundreds or thousands of hours of those conversations while somehow avoiding revealing my sexuality.
But this isn't reviewing a government action; it's reviewing a citizen initiative. It seems like the "community standards" argument must surely hold here if it does anywhere, even if the community is being irrational.
Yes, it's an citizen initiative, but once passed it is a law that is enforced by the government. When a gay couple goes to get a marriage license, it's the government that is denying them one.
