More SJC Gay Marriage Hijinks: Bostonist Explains

I'll concede the historical differences between racism and homophobia (although the fact that a sharecropper finds the comparison offensive doesn't trouble me too much - I bet women in this country before 1920 wouldn't have felt great about getting intermediate scrutiny when they couldn't even vote), I just disagree that they should be dispositive. As for the difference between racism and homophobia, lawgirl, you and I shall have to agree to disagree; "a moral problem with homosexual actions" seems like a euphemistic way of saying that people don't like it even though it doesn't affect them or hurt anyone. If discrimination against gays is distinguishable because it's about actions and not biological status, is discrimination on the basis of religion also distinguishable? If I say I have a moral problem with the actions of Jews, does that make me less of an antisemite?

"...many people of one race can effectively hide that race and live "as though" they were white."

Historically that has not been true. The cases protecting race arose out of the freeing of the slaves. A financially doomed sharecropper subjected to segregation in the 1930s in the South would take great offense to the proposition that homosexuals, who have the same access to education and other opportunities as heterosexuals, have experienced the same level of hardship. Gender does not get the same level of scrutiny because laws based on that classification are more likely to be based on real differences, and we celebrate the differences between the sexes. Racial laws are more likely to have no purpose other than discrimination, which is fundamentally offensive to national policy. People who disapprove of homosexuality have a moral problem with homosexual actions, whereas someone who dislikes black people objects to that person's mere status as a member of a race.

In closing, it's just different!!

I know that the Supreme Court doesn't like to add groups to its strict scrutiny list, I just think that's silly (I know - the Supremes won't be wringing their hands over my disapproval, but still). It seems to me it would be a much more straighforward and logically consistent approach not to create amorphous sub-standards like intermediate scrutiny and rational basis with bite, and that the distinctions there simply aren't supported by fact.

I mean, to say that historical discrimination and lack of access to the political system have been so much worse for aliens than for women strikes me as slicing too thinly, and then to delve into the mutability of homosexuality or its relative non-insularity feels like analytical overkill in the service of a predetermined outcome. Just as homosexuals are born into and grow up in herterosexual families, mixed-race people are born into and grow up in families with white members; Just as homosexuals may engage in heterosexual activity or otherwise hide their homosexuality, many people of one race can effectively hide that race and live "as though" they were white. I don't think these things detract from the ultimate truth that people are discriminated against on the basis of both race and sexual orientation, and that such discrimination, although justifications and bases are offered in its defense, amounts to discrimination for its own sake.

I guess that's really the heart of my objection to making comity a good reason to respect other states' discriminatory laws against homosexuals: The SJC says it's deferring to the interests and judgment of sister states' legislatures, but that judgment is, at base, discriminatory in intent. The effect, then, is to require a discriminatory act on the part of our government, hiding behind the less objectionable facade of interstate good relations. The reason I wrote that this is "weird" is because we're enforcing a provision of other states' laws that wouldn't even pass rational basis review if our own legislature enacted it, and wouldn't pass muster if it were identical except to deny certain rights on the (equally arbitrary) basis of race rather than sexual orientation. It's a funny quirk of constitutional doctrine that requires Mass. to respect a particular form of overt discrimination by other states.

Homosexuality does not meet the Carolene standards, but then neither do classifications based on advanced age or mental retardation - and certainly those groups face adversity. The Court hates adding groups to strict scrutiny and creates amorphous standards like "rational basis with bite" to strike down laws without adding another strict scrutiny group.

Homosexuality is not immutable in the way that being an Asian person or someone born out of this country is immutable. All people have varying levels of sexual orientation throughout their lives. You wouldn't say a newborn is a homosexual, and many homosexuals engage in heterosexual behavior and vice versa.

They are not a discrete and insular minority - they grow up in families with heterosexual parents and siblings and neighbors rather than in segregated from the rest of society.

They are not systematically disadvantaged in the political process - they have the right to vote and vocal lobbying groups.

Loving v. VA did strike down the idea that equal application of a law does not make it ok. However, the reason that law was struck down was that its only purpose was maintaining white racial purity, which was far from the requisite compelling interest. Here, the court found commity to be a sufficient interest.

We're not deferring to foreign states any more than they're deferring to us. This decision maintains the conflicts of law principle that the state of domicile has the greatest interest in formulating its own policy regaring the marriages of its citizens. If a wife from a foreign state came into Massachusetts to sue her husband in tort, we would honor the home state's policy regarding spousal immunity, as well, even though we'd apply our own law for a lot of other aspects of the case.

Lawgirl, you have neatly and accurately summarized intermediate scrutiny, which I glossed over for lack of space. Still, I think it's curious that homosexuals don't get protected class status - they seem to meet the standards you enumerate (from the famous footnote four in the Carolene Products case). I also think, as J. Ireland says in his concurrence, that the right way to look at gay marriage is through the lens of sex, not sexual orientation. "Gay marriage," after all, describes the nature of the relationship, but when the Supreme Court looked at interracial marriage, it didn't look at the relationship and determine that the question was whether miscegenators were a protected class. It looked at the individuals involved (one black, one white) and recognized that a ban on interracial marriage was functionally race discrimination. Just so, a ban on gay marriage is functionally sex discrimination.

As for comity, I guess I am hard-pressed to see what's so great about it. You're right that our courts' decisions aren't controlling in other jurisdictions, and naturally the gay marriages we sanctify won't be worth anything in other states. But why should that be our concern? If our constitution prohibits discrimination while other states' constitutions enforce it, why is it better to accommodate them than for them to accommodate us?

"The weird thing about this latest decision is that it is only possible because homosexuality has not been defined as a protected class. If other states still banned interracial marriage, comity would have to give way to preventing unequal treatment on the basis of race..."

This is not just a "weird thing." The Court considers specific factors before it decides how much protection to give a class, such as whether the group is defined by an immutable characteristic over which members have no control, whether it has been the subject of bad/hostile treatment throughout history (by the government, not society in general), and whether insular minority status makes individuals unable to obtain political power.

Race and alienage are the ONLY classifications to get strict scrutiny, which means that the law must be narrowly drawn to serve a compelling government interest. Gender classifications get intermediate scrutiny, which means that the law must be substantially related to important government objectives. Sexual orientation gets only rational basis, where the law must be rationally related to a reasonable governmental purpose.

Strict scrutiny is not always as protective as it sounds, as it applies whether the law is helpful or discriminatory group. This is why it's still ok to have all female schools, but affirmative action practices based on race must be narrowly drawn.

Homosexuality does not get strict scrutiny because it does not meet the factors the Court uses. And while rational basis review is very deferential, laws do get struck down at this level - hence the reason homosexual activities can no longer be outlawed, and why Massachusetts has legalized gay marriage. But Massachusetts decisions are not controlling law in other states, and thus commity (respecting the law of other states as we expect them to respect ours) is quite reasonable as to this group.

Actually, I figured it would be good enough simply to ignore Kansas (and Texas), but if no comity means MA vs. KS, well, bring the ruckus.

Hey there. Ease up on comity. Without it, wouldn't the Commonwealth just have to wage war on Kansas? (And let other, bigger, blue states handle the likes of Texas?)