LGBT Equality Fight Not Over

Another battle for equality for the LGBT community was won with the Supreme Court Ruling that gives them marriage equality in all 50 states. However, the war for equality has only just begun. As Scott Lemieux in The Guardian points out. “The language of the ruling means that states cannot discriminate against same-sex marriages. The same cannot be said for LGBT people as a whole – yet.” He discusses Justice Anthony Kennedy vague opinion that leaves the door open on other forms of discrimination

The problem with Kennedy’s judicial vagueness is that public officials and lower courts need to know whether classifications based on sexual orientation should be subject to heightened scrutiny, like those based on race or gender, or whether such classifications require only a “rational basis”, like economic regulation. If heightened scrutiny applies, states can only use sexual orientation classifications in law if it they are closely related to a compelling state interest – a test states usually fail. If states need only a “rational basis,” courts are generally very deferential to the state. After Friday’s opinion, it seems obvious that heightened scrutiny is being applied in practice, but Kennedy inexplicably refuses to say so. The refusal to define sexual orientation as subject to heightened scrutiny will lead to unnecessary confusion, and possibly permit federal and state judges to deny LBGT rights claims that even Kennedy might think should be upheld.

By not being more specific about his rationale for forcing all states to recognize and perform same-sex marriages, Kennedy leaves open the legal possibility that marriage is the only form of discrimination against same-sex people that is covered by the 14th Amendment. But LGBT people face many other types of discrimination – in public accommodations and in employment, for example – that now may have to be fought out case by never-ending case in the lower courts.

The LGBT community will now be focusing its energy on state laws that permit discrimination in housing, employment, commerce and the Transvestite communities special issues. To discuss those topics Democracy Now!‘s Amy Goodman was joined by Jennicet Gutiérrez, undocumented trans activist from Mexico and a founding member of Familia: TQLM and Marc Solomon, national campaign director of Freedom to Marry.