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Thu.Jul.27.2006

2:59 am EDT        79°F (26°C) in Midway, FL

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I had this one predicted: the Supreme Court in Washington state is scared shitless of the Wacko Satanic Anti-American Righties and their campaign of fear, lies, and propaganda. Five activist conservative judges came up with basically the same bullshit as New York’s high court from three weeks ago: just because heteros can have “accidents” and gay people can’t, that’s all the justification necessary to keep them faggots in third-class citizenship. Injustices Barbara Madsen, Gerry Alexander, Charles Johnson, Richard Sanders, and especially James M. Dobson Johnson have simply pulled more nonsense out of their asses.

In fact, one of my predictions from three weeks ago came true here: the anti-constitutional precedents created by the New York case were cited and even used by Washington’s own Fag-Bashing Five in yesterday’s “ruling.” Nobody in his/her right mind, except a conservative activist “judge” like those five and New York’s Fag-Bashing Four, can possibly think that gays, lesbians, bisexuals, and transgenders do not constitute a suspect classification, yet that was the claim in the majority/plurality opinions in both cases!

It’s pretty sad that a truck driver is going to have to school the judges of various state high courts on the law, but I’m going to review the triggers for suspect classification by paraphrasing from this page on Wikipedia:

1. The group’s characteristic in question must be immutable.
2. The group has historically been discriminated against.
3. The group is politically impotent (lacks power to achieve its ends legislatively).

As that Wikipedia page mentions, any one of these by itself is sufficient to classify the group in question as a suspect classification. Anybody with even one-half of a functioning brain cell knows that GLBT Americans meet ALL THREE of these conditions — #2 and #3 are self-evident, and while Wacko Satanic Anti-American Righties tell lies to the contrary, the fact that homosexuality is not chosen and cannot be “cured” (cf. John Paulk, Michael Johnston, et al.) proves #1.

Why is this important, you ask? Any law that has anything to do with a suspect classification, in either a positive or negative way, must be subjected to some form of heightened scrutiny if it is challenged. There are two different forms of scrutiny that can be applied to a law: strict scrutiny, which has historically been applied to cases involving race, and intermediate scrutiny, which has historically been applied to cases involving gender (i.e., cases of discrimination against women vis-à-vis men). Recently, it seems as though intermediate scrutiny has almost been redefined to more or less equal strict scrutiny, so we’ll mostly examine what strict scrutiny entails.

A law must pass all three parts of a three-prong test to pass strict scrutiny and be held constitutional. First, there must be some compelling governmental interest to justify the existence of the law; as the above-linked Wikipedia page points out, a “compelling governmental interest” is generally assumed to be something absolutely essential to the country’s survival and not merely something that is preferable. Already, same-sex marriage bans fail the strict scrutiny test (and therefore must be struck down) on this count: even if you do take as true the New York and Washington courts’ bullshit assertion that limiting marriage to heteros is better for children, this is at best something that is merely preferable and not vital to America’s survival.

Secondly, the law in question must be narrowly tailored to address the aforementioned compelling governmental interest. We already know that same-sex marriage bans fail the compelling governmental interest test, but for the sake of argument on this second prong, we must (for a moment) assume that such bans pass that test; even if that were the case, these same-sex marriage bans also fail the “narrowly tailored” test. Again, assuming the bullshit about hetero-only marriage being better for children to be true, banning same-sex marriage is an extremely over-inclusive (affects too many other legal rights) way to achieve the end of doing the best thing for children. The law in question cannot be either over-inclusive or under-inclusive to pass this second prong of the strict scrutiny test.

The third prong of the test can only be passed if the law in question is the least restrictive means of achieving the stated compelling governmental interest. In its effect, this is almost the same as the second prong of the test, but the Supreme Court has usually still applied it as a separate test in past jurisprudence. It is prima facie obvious that same-sex marriage bans also fail this third prong of the test; again, even with the same blather as before about heteros and kids, banning same-sex marriage is most certainly not the least restrictive way to promote hetero families. It is possible that a ban on adoption by gay couples might pass this prong of the test, if the stated compelling governmental interest is making sure kids have hetero parents, since that would be about the least restrictive means; however, marriage bans are far too restrictive. (Not that gay adoption bans would stand anyway — remember, making sure kids grow up with heteros is not a compelling governmental interest, so adoption bans would fail the first prong — unless, of course, activist judges accept that bullshit as a compelling governmental interest.)

Obviously, under strict scrutiny, the bigoted, homophobic, Christofascistic hatred put forth by New York’s Fag-Bashing Four and Washington state’s Fag-Bashing Five falls completely flat on its face. They know this, so they have to come up with ways to say that strict scrutiny doesn’t apply (i.e., that gays and lesbians are not a suspect classification) because, well, the plaintiffs are only a bunch of faggot homosexuals. Essentially, they buy into the completely debunked pseudo-science of the Christofascists to come up with justification for saying rule #1 (characteristic must be immutable) doesn’t apply, and their justifications for refusing to apply rules #2 (history of discrimination) and #3 (politically impotent) come straight out of the Nazi propaganda film The Eternal Jew. (That film made the claim that Jews were rich and politically powerful in order to whip up even more hatred among average Germans; Christofascists have taken this page directly from the Third Reich’s playbook for use in what they hope will be the “Final Solution” to the “gay problem.”)

I would have more to say, but I really need to be getting to sleep, as I still have roughly 2½ hours of driving to do tomorrow afternoon to finish this load. (I have to hit U.S. Route 231 and head up into Alabama for an early-evening delivery.) In the meantime, cue the Munchkins from The Wizard of Oz and their little ditty that the Christofascists are no doubt singing with glee now: “Ding dong, that paper are dead, that ‘goddamn piece of paper’ is dead. Ding dong, the Constitution is dead …”