3.08.2009

Prop. 8: Sex & the Suspect Class

by Kit-Bacon Gressitt

“Suspect class.” It sounds ominous, foreboding, as though members of this shady group should be studiously avoided, particularly in places of dark and dismal urban decay.

Except, most of the people I know and adore — or at least tolerate fondly — are subject to this classification system. The term is actually a bit of legalese, defining groups whose very natures make them likely targets of discrimination. The U.S. Supreme Court identifies race, religion, national origin and legal alien status as suspect classifications, and claims of unconstitutional discrimination based on these categories receive the highest level of scrutiny by U.S. courts.

(Gender is afforded the dubious distinction of being a “quasi-suspect class,” in keeping with the quasi-equality women are allotted in the United States. Hence, gender-based complaints receive a lower level of judicial scrutiny.)


Last May, the California Supreme Court added sexual orientation as a suspect class when it opined that the March 2000 anti-same-sex marriage ballot initiative, Proposition 22, violated homosexuals’ constitutional rights to marry and to equal protection. This decision provided one basis for the legal challenges to Proposition 8, another anti-same-sex marriage initiative that won by a small margin in November. Implications of that decision are now among the court’s considerations, having heard Prop. 8 oral arguments last week.

After watching the televised hearing, I imagined the seven justices shuffling their papers and tokheses back to their chambers, where handsome bottles were withdrawn from bottom desk drawers, and the oak-aged relief was judiciously applied to seven burdened brows and Solomonic psyches.

I feel for them, I do. Wisdom does not come easily; neither does its application. Whatever opinion the court renders will bitterly disappoint one impassioned faction and will likely result in talk of, if not actual, replacement of the offending majority of justices.

In the meantime, we wait — and California’s 18,000 same-sex couples, legally married before Prop. 8 passed and threatened their marriages, wonder when they will ever live free from discrimination.

Never, if Ken Starr, lead attorney for Prop. 8, has his way. He essentially argued that a simple majority of the people has the right to change the constitution, even if the change is unwise. This is not a new argument, but it is an increasingly frightening one. If we deny one class of people the inalienable right to be married, what other rights — or classes — will be at risk?

Will we next outlaw parenthood for gays — and take their children away? Will we prohibit homosexuals from teaching professions and take their jobs from them? (Schools are where they purportedly do much of their recruiting — straight kids go for those gay Xboxes like housewives used to go for S&H green stamps!)

And what other classes of folks shall we repudiate at the ballot? Take the words of Prop. 8 — “Only marriage between a man and a woman is valid or recognized in California” — and spin them around the prejudice wheel. Round and round they go!

We start with “No same-sex marriage is valid or recognized in California,” which confronts us now.

And how about “No marriage between a Black and a Caucasian is valid or recognized in California.” There go marriages left and right — for instance, the many biracial military families with deployed spouses (the military integrated long before the rest of us). Yeah, let’s muck that up.

“No marriage between a Pacific Islander and a Native American is valid or recognized in California.” Who cares? They don’t have the political clout to do anything about it.

Or “No marriage between a Baptist and a Methodist is valid or recognized in California.” And there goes me — my parents have si-i-i-inned and I am annulled!

Of course, “No marriage between a Christian and a Muslim is valid or recognized in California” could win a whole lot of votes — maybe even succeed — so Starr can defend that next.

Ridiculous, right? Unbelievable!

Unless you’re gay and Prop. 8 is upheld, making you something less than the heterosexual human next to you.

It’s all too believable, and it’s no better than base, ignorant fear, this prejudice against homosexuals; it’s no more evolved than the fear white men had of blacks touching their women; it’s the crude and irrational fear of a woman’s lips on a woman’s labia, of one man’s penis penetrating another man.

If supporters of Prop. 8 would just get their quasi-family values out of their dogmatic crotches, they could see — truly see and appreciate — the familial and marital love of committed homosexual couples. Gee, they’re just like the rest of us.

In the meantime, I look forward to the day when people of prejudice become the last, solitary suspect class.

(Editor's Note: This piece is cross-posted from Kit-Bacon Gressitt's personal blog, Excuse Me, I'm Writing.)

For more background on this issue, please also see:


(The photo of a post-election protest in San Francisco against Prop. 8 is by ingridtaylar of San Francisco, CA via Flickr, using a Creative Commons license.)










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