by Jeremy Leaming
Beyond the most recent high-profile state legislative victories for marriage equality, there are “huge advancements that have been made in terms of [court] doctrine regarding sexual orientation law,” North Carolina University law school professor Holning S. Lau told ACSblog.
Lau, a panel participant at the ACS 10th Anniversary National Convention, said that until recently “there was virtually no precedent to be cited for the proposition that sexual orientation discrimination should be subject to heightened scrutiny -- this idea that sexual orientation is a suspect or quasi-suspect status. But over the past few years, we’ve seen a crystallization of jurisprudence to support that point. The high courts of California, Iowa, Connecticut, have all issued opinions saying that sexual orientation is either a quasi-suspect or suspect status."
He continued, “We saw the same conclusion reached in Perry v. Schwarzenegger [the 2010 federal court opinion invalidating California’s anti-gay marriage law, Proposition 8], in Eric Holder’s memo on DOMA [the federal anti-gay marriage law]. And that’s been huge, because prior to this burgeoning of jurisprudence on this point, a lot of courts concluded in the opposite direction.”
So while a few state legislatures, most dramatically, the New York legislature, have come through in favor of marriage equality, there is a slowly developing body of jurisprudence that looks promising for the advancement of equality for the LGBT community.
“We’ve seen the jurisprudence really reach a new point,” Lau said, “and there is good case law, persuasive case law, in many instances … case law that courts can make use of to support the idea that sexual orientation discrimination should be subject to heightened scrutiny.”
Earlier this month, Professor Scott Lemieux wrote, in a piece for The American Prospect, that the LGBT community must not forgo the courts in seeking full equality. All options must be used in securing equality, he wrote.