Full disclosure: I am an approved speaker on the Federalist Society Speakers' Bureau. This is a conservative organization for law students and lawyers. They are most emphatically NOT a social conservative organization. They have a goodly mix of libertarians and fiscal conservatives, many of whom are completely irreligious and even hostile to the social conservative worldview. This fact makes the analysis of Schiff and Sandefur all the more significant.
They question the Court's judgement in its claim that the terms "marriage" and "domestic partners" are different enough to justfiy the court's argument.
"the terms domestic partnership and civil unions do not appear to be derogatory, and it is questionable whether citizens have a constitutional right to be described by words they find preferable..."
But the real "money quote" in this article came next.
Far more significant in the Marriage Cases was the court's adoption of strict scrutiny in cases where the government classifies people on the basis of sexual orientation. This portion of the opinion will have far-ranging effects in the coming years. Under the Marriage Cases, the state may now discriminate between men and women more easily than it can discriminate between homosexuals and heterosexuals. Given that California remains the epicenter of major battles between traditionalists, located for the most part in the state's rural counties, and urban social liberals, a statewide ruling requiring school districts, public health clinic and all other government institutions to treat both groups with precise equality may result in serious conflicts in the decades ahead.
I have argued for some time (here and here and here.) that the end result of the legal trends would be a world in which gender is considered socially constructed and therefore subject to social engineering, while sexual orientation is considered fixed, immutable, and therefore the basis for creating a protected class. This analysis seems consistent with my intuition.
This analysis is also consistent with the arguments of the General Counsel of the Prop 8 campaign. He has been arguing that requiring defense of sexual orientation claims to pass strict scrutiny greatly increases the chance that in conflicts between religious liberty and sexual orientation, the state will now favor sexual orientation. Religious liberty claims are far more likely to lose.
Although the Federalist Society paper did not say this, I will say this: The disproportionate favoring of sexual orientation over religion is reason enough for fair-minded Californians to vote yes on Prop 8.
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