State Supreme Court : Sexual orientation is suspect class

One of the most significant aspects of last week's ruling on same-sex marriage was the finding that sexual orientation is a suspect class that requires discriminatory laws to be reviewed under strict scrutiny, lawyers told The Recorder.

"California's is the only state high court to have come to this conclusion (the federal Supreme Court has not weighed in)," Yale law professor Kenji Yoshino wrote in an article for Slate.com. "This pronouncement is critical because it is portable—that is, gays [and lesbian and bisexual people] can now challenge any California state policy that discriminates on the basis of sexual orientation," wrote Yoshino.

Companies may need to change employee policies as well. For example, "if an out-of-state company has a benefit plan and it defines the people getting it as 'employee and spouse,' then a person in a marriage by a same-sex couple in California would get the benefit," Jon Davidson, legal director of Lambda Legal, told the Los Angeles Times.

Challenging the challenge to same-sex marriage

One careful reader of the last week's same-sex marriage decision discovered a potential protection against the proposed constitutional amendment being pushed by opponents of same-sex marriage, The Recorder reported.

Former Santa Clara judge LaDoris Cordell told The Recorder that the California Supreme Court's decision may be protected by a paragraph in the ruling that marriage is "so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process." (page 6)

Attorney Glen Lavy, who supports the proposed initiative, countered that the court is speaking specifically to statutory initiatives, not constitutional ones.

The initiative could also be challenged in court because it doesn't specify whether the proposed amendment would apply retroactively to marriages performed before November, the San Francisco Chronicle pointed out.