Thursday, November 19, 2009
Party Lines - Will SLC’s policy on discrimination influence the Legislature? By Todd Weiler, Davis County Republican
It is too early to know what impact the Church’s statement will have on the Legislature, but I suspect that many lawmakers will remain weary of passing any bills that grant special protections based on sexual orientation.
Conservatives do not want to elevate homosexual rights to a “suspect classification” under the law, which would entitle them to extra protections. When allegedly discriminatory laws are challenged, courts must determine whether to apply a “rational basis” or “strict scrutiny” standard of review. If a court applies the lenient rational basis standard, the law is presumed valid and upheld if it bears some relationship to a legitimate interest. Under the more stringent strict scrutiny, however, the law is presumed to be invalid. So it is much easier to get a law struck down if the court applies strict scrutiny.
In the past, courts have determined that gender, religion, and race were all suspect classifications. Gay rights activists have been working overtime trying to get the courts to recognize sexual orientation as a suspect class, which would lead to laws defining marriage as between a man and a woman to be struck down.
Before Proposition 8, the California Supreme Court applied strict scrutiny to the California Equal Protection Clause and struck down a law that prevented same sex marriages. It determined that the marriage statutes made a distinction based on sexual orientation, which requires additional protection. Finding that homosexuals had been subject to past discrimination, the court held that sexual orientation is a core part of personhood and has no bearing on whether someone can be a productive member of society. California was the first to conclude that sexual orientation is a suspect classification triggering strict scrutiny.
By supporting the two ordinances, the Church made good on last year’s promise to “not object to rights for same-sex couples regarding hospitalization and medical care, fair housing and employment rights, or probate rights.” It may have also stolen some of the thunder from news anchor Reed Cowan’s upcoming movie about the Church’s activism against gay marriage.
The Church is attempting to walk a fine line that respects fundamental rights of all people without affording a special legal status to homosexuals. Only time will tell if it is successful.