Comments on: New at Reason

By: Greg Newburn

Greg Newburn — Wed, 16 Mar 2005 03:43:27 +0000

I assumed it was California law (I hadn’t read the opinion). It’s quite heartening that that is the standard, as (I think) it would be impossible for the state to meet the both prongs (both “compelling interest” and “narrow tailoring”). Nice synopsis of the case, J.

By: Jon Rowe

Jon Rowe — Wed, 16 Mar 2005 01:44:35 +0000

I assumed that was an artifact of California law.

That’s got to be it; it’s fairly common for states — well for the more socially liberal states — to go beyond the minimal federal “floor” of rights and increase the level of protection.

That’s means that California’s prohibition on public gender discrimination gives it its own little ERA.

One wonders though, if gender distictions receive strict scrutiny in Cali, why they haven’t yet mandated unisex bathrooms….or when will they?

By: Julian Sanchez

Julian Sanchez — Wed, 16 Mar 2005 00:07:07 +0000

Right. I used the language of “strict scrutiny” because that was the language the judge used in his decision; I assumed that was an artifact of California law.

By: Greg Newburn

Greg Newburn — Wed, 16 Mar 2005 00:04:26 +0000

“If state discrimination against gay couplesÃ¢â?¬â?as opposed to gay individuals, who still have not been ruled to constitute a suspect classÃ¢â?¬â?is viewed as gender discrimination subject to strict scrutiny, then the state must supply not merely a “rational basis” for legislation to pass constitutional muster, but rather advance a ‘compelling state interest’ for making a distinction.”

From what I recall (and California law may differ from federal law), unlike racial discrimination, gender descrimination does not trigger “strict scrutiny,” but rather some kind of “intermediate scrutiny.” The standard in such a case is not that the state must prove a “compelling state interest.” Instead, the state action must serve “important governmental objectives, and must be substantially related to achievement of those objectives.” (Craig v. Boren, 429 U.S. 190, 197 (1976)).

However, one could argue that the standard was heightened after the VMI case in 1996, when the Court ruled that the government needed to provide an “exceedingly persuasive justification” for gender discrimination. Such a standard is known as “intermediate scrutiny plus,” but is still not quite to the level of strict scrutiny.

Like I said, California jurisprudence may be different, but readers should be aware of the difference to avoid confusion.