Early post tonight, queer kids, because it’s pretty self-evident what the news is.

Judge Walker finally delivered a verdict on the Perry v. Schwarzenegger case, AKA Was Prop 8 Constitutional, andverily, he decided that it was not.  Full story here: http://www.cnn.com/2010/US/08/04/california.same.sex.ruling/index.html

While the likelihood is that his decision will be appealed and the case taken to the Court of Appeals (a statement of intent for this must be file by tomorrow), the cool thing about this decision has to do with the legal concept of “tests of scrutiny.”

Essentially, there are 3 levels of scrutiny, and LGBT cases always get the short stick concerning them.

  • Strict scrutiny, which is used to judge the necessity of laws pertaining to discrimination based on race, means that you have to prove that a law is the most narrowly-tailored version of an action that can be taken to bring about a desired outcome while minimizing discriminatory harm.
  • Intermediate scrutiny, which is used for laws about gender discrimination, says that the action has to minimize harm, but not have to be the “most narrowly-tailored” option.
  • The rational basis test, which for some reason is still used for LGBT cases, says that a defendant must only prove the action has a legitimate correlation with the desired outcome and has a strong likelihood of making it come about.

Obviously, Prop 8’s opponents were trying to get Judge Walker to use intermediate or strict scrutiny to judge the case, but the amazing thing was, he ruled Prop 8 unconstitutional on a RATIONAL BASIS TEST.  In other words, Judge Walker almost unconditionally confirmed that Prop 8 has no logical reason for existing besides blatant prejudice.

An exact quote from his 136 page court statement:

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

That is a strong precedent to set in favor of Prop 8’s repeal.  Keep your fingers crossed, everyone.  If this battle is taken to the top, I dare say it could mean the legalization of same-sex marriages across the country.

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