Forcing the Spring: Inside the Fight for Marriage Equality Read Online Free

class of citizens if doing so advances a legitimate state interest, but the majority in
Lawrence
found that mere moral condemnation wasn’t enough to meet that test.
    The landmark decision spoke to the stigmatizing effect of Texas’s antisodomy law, and declared that gays should be free to enter into relationships in their homes and “still retain their dignity as free persons.”
    “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
    Olson noted that no less a conservative than Justice Scalia had argued in a blistering dissent that the majority in
Lawrence
had opened the door to same-sex marriage.
    Generally, the Court defers to the political process by presuming that duly enacted laws are constitutional. But laws may not arbitrarily treat similarly situated citizens differently. At the very least, Proposition 8 had to pass what is known as a “rational basis” test, meaning that the decision to strip gays and lesbians of the ability to marry must be rationally related to some legitimate state purpose. Finding one, Olson believed, was going to be difficult.
    Justifying the ballot initiative would be harder still if he could persuade the Supreme Court to set the bar higher. Laws that infringe upon fundamental rights or that target certain vulnerable minority groups that have been historic targets of discrimination receive additional scrutiny from the Court. If Olson could convince the justices that the fundamental right to marry was the right to marry the person one loves, rather than a person of the opposite sex, or show that gays and lesbians constitute what is known as a “suspect” or “quasi-suspect” class, the Supreme Court would apply a much less deferential balancing test in weighing the constitutionality of Proposition 8.
    In determining whether a group is a class in need of extra judicial protection, the Court considers whether the group has been subject to a history of discrimination; whether it lacks the political power to protect itself in the majoritarian political process; and whether its members exhibit an obvious or immutable trait that makes them readily distinguishable as a class but does not prevent them from contributing to society.
    Racial minorities, for instance, are considered a suspect class. Therefore laws that discriminate against them—as well as those that infringe upon afundamental right—must meet a strict scrutiny test, meaning that they must serve a “compelling” governmental interest, be narrowly tailored, and represent the least restrictive means of achieving the government’s objective. Women constitute a quasi-suspect class, and laws that discriminate against them are subject to intermediate scrutiny, meaning they must serve an “important governmental objective” and be “substantially” related to achieving that objective.
    Sexual orientation, Olson believed, was no more a choice than skin color or sex. “The Court should treat it similarly,” he told Chad.
    Chad listened, mesmerized. Olson was talking about some of the murkiest areas of the Supreme Court’s jurisprudence, and divining the true meaning and extent of the justices’ opinions was akin to what an archaeologist faces when trying to decipher recently unearthed ancient cave drawings. The marking were there, but what did they really mean?
    But the lawyer was incredibly charismatic, able to take a highly divisive issue and, in his forceful but always pleasant voice, boil it down into a plainspoken legal argument that seemed so reasonable that it was hard to believe there was any other side.
    Olson could be, Chad thought, one of the most eloquent spokespeople the gay rights movement had ever seen. Stepping outside onto Connecticut Avenue after the meeting, he phoned Kristina.
    “You will not believe this, but he will take the case,” Chad told her.
    “I was just shocked,” she recalled. “We thought, ‘Game on.’”

    Walking up the