What we really lost in the latest marriage decisions

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New York and Washington's supreme courts are among the most liberal in the nation. New York's especially is both well regarded and can be relied upon to expand individual rights. If there ever were a state that one would assume would be likely to extend the 14 Amendment, or its New York equivalent, to gays and lesbians, New York would be it. Yet they did the exact opposite.

First, some backround. If a state wants to discriminate on the basis of race it must meet strict scrutiny. Under strict scrutiny a law must meet a legitimate state purpose and be narrowly tailored to advance that purpose. Such laws are assumed to be unconstitutional unless proven otherwise. It is a very high standard and thus we have very few laws which permit racial discrimination by governmental bodies.

If a state wishes to discriminate on the basis of gender it must meet an intermediate level of scrutiny. A state must still justify permitting gender discrimination but the scrutiny isn't quite as high. Thus a state can provide coverage for viagra but not birth control.

Finally for most other classes there is the rational basis test. For this test a state just needs to have a reason for the discrimination. This test is exceptionally easy to pass. Courts don't look at the veracity of the reason thus a reason can be a sham. They can use conflicting reasoning and don't even have to show that the law is at all tailored toward the promotion of that goal.

Many of us had hoped to see discrimination against gays and lesbians treated by courts as at least as problematic as gender discrimination. We would have loved to see the strict scrutiny standard. Instead, one of the most liberal courts in the US has decided upon the rational basis standard. If liberal courts have decided on this standard then we have little hope of the current federal judiciary apply more rigourous standards. We lost a great deal with these decisions. We almost surely are going to have to win the ENDA battle in the Congress now. This wasn't just marriage it was much larger.

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