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View Diary: Elderly gay couple kept apart at the end of one's life (172 comments)

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    MKSinSA, teloPariah

    Then what you are saying is we still have to set precedence in our CA laws that will carry over to Federal law?

    California's precedent that sexual orientation discrimination is subject to strict scrutiny is a precedent that needs to be adopted everywhere.  I take heart in knowing that two other courts decided to follow California.  But that's just a start.  I think that the more state courts agree that sexual orientation is a suspect or quasi-suspect classification (deserving of strict scrutiny) along with more change on the Supreme Court will see the adoption of this standard by the Supreme Court.  The reason that this is so important is because most types of discrimination, including sexual orientation discrimination, are reviewed by the courts under a standard known as rational basis review.  Under rational basis review, the burden is on the plaintiff to show that the government's action had absolutely no rational basis and was completely arbitrary.  The government only has to show that they had a legitimate interest and the discrimination is intended to further that interest.  It's extremely deferential and most legislative acts and state actions are presumed constitutional.  The government can defend anti-gay laws in any number of ways but those ways work under rational basis review.  So when the state makes laws that discriminate against you and your partner, defenses such as "we want to promote procreation" are good enough to hold the discrimination constitutional.  

    Now what the California Supreme Court did was say that this was no longer an appropriate methodology under which to review sexual orientation discrimination.  When the government discriminates, they better have a damn good reason for doing so (most legislation that discriminates on the basis of a suspect class is struck down).  My hope is that California's wisdom will one day be copied by the federal courts.  In the meantime, I am hopeful that other state courts follow California's lead.  Discrimination against gays and lesbians should not be subject to the same standard of review that restrictive city street parking permits receive.  At least three state courts recognize that, maybe more will follow.  

    As for California, where strict scrutiny exists, I'm suggesting that if there are no statutes that prohibit sexual orientation discrimination in the administration of estates and trusts and in hospital visitation, discrimination on the basis of sexual orientation should be constitutionally prohibited.  

    That said, I'm sure there are statutory provisions that will be relied upon Clay to fight the injustice done to him.  I just don't know what those are.  

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