Dale Carpenter: Sexual orientation and heightened scrutiny in the California marriage decision
Dale Carpenter writes on the Volokh Conspiracy:
While the politics are complicated and uncertain five months out, a thrilling but narrow win for gay marriage in the California Supreme Court last week could become a narrow and heartbreaking loss at the polls in November. But the court’s equal protection holding will outlast a state constitutional amendment banning gay marriage and will have potential to challenge anti-gay discrimination well beyond the issue of marriage. If gay marriage loses in California in November, the equal-protection holding will be the lasting legacy of the opinion . . .
I. Is the limitation of marriage to one man and one woman “sexual orientation” discrimination? . . .
II. Should sexual-orientation discrimination be subjected to heightened judicial scrutiny? . . .