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The following quote comes from an article on Perry v Schwarzenegger, the upcoming challenge to the Californian ban on gay marriage. The defence includes the Yes on 8 coalition (which wanted to ban gay marriage) and the conservative Alliance Defence Fund.

“Second, the defense argues, homosexuality is not an unchangeable characteristic. This is where things get weird. Defense lawyers plan to subpoena California’s domestic-partnership and marriage registries and note any matches. They also argue that sexual orientation falls on a continuum and that sexuality is “fluid,” a decidedly nontraditional view that has taken root in college queer-studies departments but not the sort of thing you’d ever hear from Focus on the Family’s James Dobson.”

That’s hilarious. ‘Fluid sexuality’ and queer studies are usually realms visited only by transsexuals and rampant hippies. Its good to see the conservative movement embracing the Rocky Horror side of things.

On a more serious note, there’s some interesting discussion of whether or not homosexuals form a ‘suspect class’ of people, along with people of minority races and a few other groups. It claims that:

“Legal experts say getting judges to recognize gays as a suspect class will be a tough sell; the Supreme Court has long refused to make age or disability a protected category.”

For my part, I can hardly see why. Age has always been treated differently to other characteristics in terms of discrimination. As Justice Kitto of the Australian High Court pointed out, being a child (or being old) is a characteristic everyone faces, and hence discrimination against the young is discrimination that everyone faces. That being so, its not unfair discrimination. I’m not sure what disability those legal experts refer to, but mental disability is another special characteristic which requires special treatment. To deny full mental capacity is to attack the rationality of men which stands at the heart of the law. If you deny that legal fiction, the entire legal framework stops working so lawyers are quite reluctant to break that assumption.

It seems to me that homosexuality has more indicia in common with race or gender than with age or disability. It is an inherent characteristic’s of one’s personality. It won’t be accidentally discriminated against (unlike disability) but must be targetted against.

But of course, I am not an American lawyer. And more importantly, I am wise enough to know that should it ever reach the SCOTUS, it would be a real challenge to reach 5 votes. But not impossible – it seems everything depends on Kennedy J yet again.


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