The fact that the CSC called for "strict scrutiny" rather than a lesser degrees of judicial review, such as, "intermediate scrutiny" or "rational basis" means that even before Hate8 the CSC had already considered same - sex couple as meriting a higher standard of judicial review of legislation because same sex couples qualified as a suspect group ( laws against us are suspect-not us)
Suspect groups are:
“discrete and insular minorities” who have historically faced extensive unjustifiable discrimination,
who are unable to remove themselves from the category,
and who have been the subject of such prejudice that they are unable to protect their interests in the legislative process. I note that the argument that same sex couples "could remove themselves" from the category that subjects us to discrimination is the reason that saying being gay is a
"choice" is so odious.If the law accept's that being gay is a choice, then we, same sex couples, lose the protection afforded to suspect groups i.e strict scrutiny of legislation that may discriminate against us.
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http://www.answers.com/topic/equal-protection-clause Equal Protection Clause
Clause set out in the Fourteenth Amendment of the Constitution that dictates that state governments cannot pass or enforce any laws based solely on a specific classification of person by race, gender, religion, ethnicity, or age.
US Supreme Court: Equal Protection
The Equal Protection Clause of the Fourteenth Amendment, adopted in 1868, expressed the commitment of victorious Republican forces after the Civil War to include in the Constitution some protection for the equal rights of newly emancipated slaves.
The focus of the concern for equality was on the rights of African-Americans, but the framers of the Equal Protection Clause deliberately drafted it to provide protection for the equal rights of all persons.
By its terms, the Equal Protection Clause covers action only by state governments.
The Court has, in general, applied the same standards of equal treatment to action by Congress as it has to action by state legislatures.
Ideas of equality prevalent in the 1860s distinguished between civil, political, and social rights.
Equality with respect to civil rights meant equal status in the legal relations of the private economy, coupled with the right to enforce that equal status.
Equality with respect to political rights was more controversial at the outset, with many supporters of equal civil rights opposed to equal voting rights for African-Americans.
Social rights were those arising from the personal, noneconomic interactions among people, and there was general agreement in 1868 that the federal government ought not attempt to guarantee equality in that domain.
When the Court upheld a statute requiring railroads to segregate their passengers by race (Plessy v. Ferguson, 1896), it effectively abandoned the effort to assure civil equality for African-Americans through the Constitution.
The Court suggested that it would apply the Constitution with special care in cases involving disabilities imposed on “discrete and insular minorities” (Footnote Four, United States v. Carolene Products, 1938).
Strict Scrutiny
And in the course of upholding the internment of Japanese Americans during the war, it stated that classifications affecting racial minorities had to survive “strict scrutiny” (Korematsu v. United States, 1944), which the Japanese relocation measures did, the only instance in modern times when a race-discriminating government action has.
The final element of the revival of the Equal Protection Clause occurred when the Court invalidated a statute requiring the sterilization of violent recidivists, but not recidivists in white-collar crime, on the ground that classifications affecting fundamental interests had to be strictly scrutinized (Skinner v. Oklahoma, 1942).
During the 1960s the Supreme Court overturned numerous statutes requiring segregated public facilities and began to explore the broader implications of the doctrine it had begun to develop in the prior decade.
The Court under Chief Justice Warren Burger pulled back from the broader suggestions in these cases and ultimately held that strict scrutiny was appropriate only in cases involving traditional racial minorities and fundamental interests that were themselves spelled out in the Constitution (*San Antonio School District v. Rodriguez, 1973).
Formally, the problem of equal treatment arises when the government treats one group differently from another in the pursuit of some social goal.
Ordinarily, not all members of the disadvantaged group will contribute to the evil that the government is trying to avert and some members of the favored group will contribute to that evil. Classifications are therefore typically both “overinclusive” and “underinclusive.”
The problem for equal protection law is to specify what degree of lack of correspondence between the social goal and the classification used is permissible under what circumstances.
Equal protection law can be described in two ways.
“suspect” classifications
First, the Court distinguishes between statutes that themselves utilize racial or other “suspect” classifications and statutes that, though stated in nonracial terms, nonetheless have a “disparate impact” on racial minorities.
If the statutes use racial terms, they must survive strict scrutiny, which means that the legislature must be attempting to promote extremely important social goals, and the use of the racial category must be almost essential if those goals are to be served. The fit between the social goal and the classification must be extremely close.
In contrast, if the statutes are “facially neutral” in not using racial terms, the fact that they have a disparate impact in practice does not automatically lead to strict scrutiny. Only if the unfair impact on minorities is deliberately intended by the legislature will the Court demand strict scrutiny; otherwise, the legislation must simply be using a classification that is a rational method of accomplishing social goals that the legislature believes important.
The second description of equal protection law treats the distinction between “strict scrutiny” and “rational relationship” differently. On this view the Court has identified several types of classifications.
Some, such as racial classifications, call for strict scrutiny, where the fit between social goal and classification must be extremely close, whereas others, such as those basing government action on the ability of people to pay for services or on their participation in certain aspects of the private economy, are social and economic legislation where the legislature must merely be rational in using the classification to serve its goals.
In the latter cases, the fit between social goal and classification can be quite loose; the legislature can regulate many people who do not contribute to the evil it is trying to avert, and it can fail to regulate a great many people who do contribute to that evil.
Groups that are entitled to strict scrutiny, the Court has suggested, are
“discrete and insular minorities” who have historically faced extensive unjustifiable discrimination,
who are unable to remove themselves from the category,
and who have been the subject of such prejudice that they are unable to protect their interests in the legislative process.
“Intermediate” scrutiny.
There is, however, a third group of classifications that calls for “intermediate” scrutiny.
The doctrinal formulations of intermediate scrutiny have varied, as have the groups that elicit it.
The prototypical case involves a classification based on gender,
Intermediate scrutiny typically means that the Court will look somewhat skeptically on the claim that using a gender or similar classification is necessary to serve important social goals, but it will not demand the extraordinarily high levels of justification that it seeks in cases involving strict scrutiny.
Using intermediate scrutiny, the Court invalidated gender segregation in nursing schools (Mississippi University for Women v. Hogan, 1982) and Virginia's operation of a military college to train only men with a distinctive curriculum (United States v. Virginia, 1996). It upheld a requirement that only men register for the draft, at least when women are not eligible by statute for combat duty (Rostker v. Goldberg, 1981).
Analysts have had difficulty reconciling the Court's results with the doctrinal formulations it uses.
For example, the Court explicitly refrained from requiring either strict or intermediate scrutiny in a case involving discrimination against the mentally retarded, but it nonetheless found unconstitutional a city's attempt to bar a residential group home for the mentally retarded (City of Cleburne v. Cleburne Living Center, 1985).
Justice Thurgood Marshall criticized the Court for pretending that its equal protection analysis uses rigid categories, in which only a few “suspect” classifications or fundamental rights spelled out elsewhere in the Constitution receive special protection.
Rather, he argued, it has adjusted the degree of justification it demands according to a sensitive calculus that takes into account questions of degree.
These questions include how important the interest affected is, whether or not that interest is specifically protected by the Constitution, and how similar the affected group is to groups that have historically been the subjects of unjustifiable discrimination.
Justice John Paul Stevens suggested a similar approach, based on his view that “there is only one Equal Protection Clause” (Craig v. Boren, 1976), not several with different standards of review.
Commentators generally agree that Marshall's analysis and Stevens's make more sense of the Court's actual behavior, and that a more flexible approach than the Court's is appropriate to deal with the varied problems of classification that the Court confronts.
Some decisions suggest a relaxation of the Court's dedication to the “tier” approach. Romer v. Evans (1996) invalidated a Colorado initiative that denied homosexuals and lesbians the ability to secure “protected status” under state antidiscrimination rules, invoking rational-basis review and refraining from holding that sexual orientation was a suspect classification. *
Despite these decisions and academic criticisms, the Court seems committed to using the verbal formulations expressed in the “tier” approach.
Bibliography
Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986).
Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, Harvard Law Review 86 (1972): 1–48.
Kenneth W. Simons, Overinclusion and Underinclusion: A New Model, UCLA Law Review 36 (1989): 447–528
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Here is what CSC said before PHate8
http://www.latimes.com/news/local/la-me-gaymarriage16-2... >>In a 4-3 decision, the justices rule that people have a fundamental 'right to marry' the person of their choice and that gender restrictions violate the state Constitution's equal protection guarantee<<
By Maura Dolan, Los Angeles Times Staff Writer
May 16, 2008
>>The 4-3 ruling declared that the state Constitution protects a fundamental "right to marry" that extends equally to same-sex couples. It tossed a highly emotional issue into the election year while opening the way for tens of thousands of gay people to wed in California, starting as early as mid-June.
The majority opinion, by Chief Justice Ronald M. George,
declared that any law that discriminates on the basis of sexual orientation will from this point on be constitutionally suspect in California in the same way as laws that discriminate by race or gender, making the state's high court the first in the nation to adopt such a stringent standard.
The decision was a bold surprise from a moderately conservative, Republican-dominated court that legal scholars have long dubbed "cautious," and experts said it was likely to influence other courts around the country.
But the scope of the court's decision could be thrown into question by an initiative already heading toward the November ballot. The initiative would amend the state Constitution to prohibit same-sex unions.<<
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