Monday, November 17, 2008


I just received a great - long-winded - but worth the read email from a local citizen named Kathleen. Her email brings up several corrections to my earlier posting "It Scares Me.." . I encourage you to read her informative email... I hope she doesn't mind me posting it for everyone to receive a little education lesson.

Hi Scott,

I'm following up from Saturday to ask that you add me to the Pasadena-specific email list and to let you know that I'm available to volunteer prior to the Jan 10 rally. I will be out of town the month of Dec, but return on Jan 6. If I can be of assistance the few days prior to the rally, I'm available.

Also, a couple things I wanted to say. First, I sincerely hope you did not take to heart the negative comments that one man made about the "poor planning" etc.. I've done community organizing in the past and as I said to you on Saturday, what you managed to accomplish in a week was AMAZING. Don't worry -- even if there were people who couldn't hear, they'll be back. They weren't there to hear specific speakers or any "message." They were there to feel the positive energy of the group and to take a stand in public. It was more important that THEIR voices be heard, not yours. :-) You DID GREAT!!!!

Secondly, I just read your blog and thought I'd comment on this statement from today's It Scares Me entry, "Would it be just as easy to write something into our constitution to say that blacks didn't have the right to get married by a vote"

The answer is NO. And the reason is LEGAL. It's illegal to discriminate based on race. If we were to attempt to amend our State Constitution in a way that discriminated based on race, it would be struck down on a federal level by the US Supreme Court. Currently, no such federal protection exists for sexual orientation or gender identity.

Here's a quick constitutional law lesson.... :-)
When a law is passed, or other actions taken by governments, it has to pass constitutional muster. How likely it is to be upheld as being constitutional depends on what "level of scrutiny" the court will apply when reviewing the law. There are three levels of scrutiny:
1. Rational Basis
The law need only be "rationally related" to a "legitimate" government interest.
2. Intermediate Scrutiny
The law must be is "substantially related" to an "important" government interest.
3. Strict Scrutiny
The law must serve a "compelling" government interest, must be "narrowly tailored" to serve that interest and there can be no "less restrictive" way to accomplish the interest.

There are very few laws that will be held unconstitutional if all they have to pass is the "Rational Basis" test. It's much, much harder for a law to withstand constitutional challenge if it has to pass "Strict Scrutiny."

There are two reasons a law will be evaluated under the Strict Scrutiny test: (a) the law restricts a fundamental right, e.g. right to vote, free speech, etc. or (b) the law singles out a "suspect class" of people, i.e., it singles out a specific group of people, thus making the law suspect.

To date, the US Supreme Court has only determined two groups of people to be a "suspect class" -- racial minorities and religious groups.

One of the things the California Supreme Court did when it made its ruling on gay marriage in May of this year was to determine that sexual orientation was a suspect class with respect to discrimination and thus the ban on gay marriage had to be subjected to strict scrutiny. They determined that the ban could not withstand the tests required. This is EXTREMELY important for California law. The court will not allow an amendment to the constitution which discriminates against a suspect class, so if they continue to parse the argument the same way, they can't let Prop 8 stand. But it's not a slam-dunk. The vote on the court was a close majority and we'll have to see if the Court views the discussion on sexual orientation as suspect class as a holding of the case, or simply dicta (discussion) not rising to the level of legal precedent.

And a note: This determination of sexual orientation as suspect class only applies to State law, not Federal law.

The most profound thing that could be done in this country would be to pass a FEDERAL law protecting LGBT people from discrimination, much as the 1964 Civil Rights acts did for racial minorities. There was even a poster at the rally on Saturday that recognized that fact .. it said something like "Amend the 1964 Civil Rights Act to include Sexual Orientation." (Personally, I think it must also protect transgender people).

Currently, there is a proposed law which would grant protection in employment -- a step in the right direction, but it must be MUCH broader if any real protection is to exist. (you can read about ENDA here: )

Long winded, I know. But I feel the more people who understand the legal challenges, the better the chances of getting legal protection. :-)

Warm regards,

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