For any of you non-lawyers who are interested in reading a great layman's article about the legal fight making its eventual way to the Supreme Court to recognize homosexuals as equal under the law , please check out
this article by Gabriel Arana in the American Prospect. The fundamental principle at work in this is something I learned years ago in law school:
The legal issues in [the current litigation] mirror those in Loving v. Virginia, the 1967 case that struck down miscegenation laws. In Loving, the court ruled that there was no compelling state interest for outlawing interracial marriage and that marriage was a fundamental right. But unlike Loving, by which time race had already been established as a suspect classification, the Supreme Court has not previously considered whether gay people are a suspect class. Courts, though, have generally granted suspect classification to groups that are well-defined and possess an "immutable" trait; share a history of discrimination; and are politically powerless to protect themselves.
In essence, Boies and Olson must prove that gay Americans deserve the same rights as everybody else because they are, paradoxically, different. The plaintiffs have said they will have psychologists and scientists testify that being gay isn't something you can change. To establish political powerlessness, Boies and Olson point out that there are no openly gay senators, governors, or Cabinet members and that gays and lesbians have been unable to get nondiscrimination legislation passed on a national level -- facts that the defense has not challenged.
I think we should all bear in mind a great quote from the end of the article:
[T]he Prop. 8 imbroglio and its legal fallout should serve as a reminder that equality isn't a once-and-for-all achievement. Rights can be rescinded, the ground can shift again. Nor is it an eventuality.
Despite Martin Luther King Jr.'s assurance, the arc of history does not bend in any direction -- much less toward justice -- on its own.
