Liberals do not merely contend that laws based on sexual orientation lack any "rational basis." They also claim the only motivation for such laws is prejudice against gays. They therefore want the Court to designate homosexuals as a legally protected group like minorities or women and apply to Proposition 8 the highest levels of constitutional protection, called strict or heightened scrutiny.
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Editorial page editor Paul Gigot on why the evolving cultural debate over same-sex marriage is best settled democratically.
The Court has not used the equal protection clause to create a new category of people who need extra legal defenses in three decades, largely because doing so disrupts the ebb and flow of the ordinary political process. Such caution is prudent, especially here. Homosexuals are not disenfranchised like blacks in the mid-20th century, as the very progress of the gay rights movement shows.
Nine states and the District of Columbia now recognize same-sex marriages, up from zero less than a generation ago. Though the early states were ordered to do so by their courts, more recent gains came through legislatures, as in New York. Last year, proponents won three of three popular referenda in Maine, Maryland and Washington state. Through persuasion, gay marriage has come to enjoy a slight popular majority.
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