The linked article at Slate is a worthwhile read, as it discusses one path the US Supreme Court could take towards marriage Equality that according to the author, would make the most number of people, for and against, happy. I’m not sure I agree entirely with the rationale, but it is a good read none the less. I’m not sure opponents of Marriage Equality would see it as a win for them. However, there is another aspect to the piece which is extremely important for everyone within the LGBTQ rainbow coalition, and it deals with stuffy legal stuff, so, not sure it will get much coverage.

You sometimes hear LGBTQ activists decry the focus marriage has taken because it eclipses other essential and currently missing human rights, like basic nondiscrimination protections in employment, housing and public accommodations. They claim that marriage impacts only a subset of the whole LGBTQ and mostly more well-to-do white gay and lesbian couples. I’ve never agreed with that critique, but it is one out there. But, Sethi, in the Slate article highlights a way that a Supreme Court decision could have far ranging effect for lesbian, gay, bi, and trans persons: Here is a snip:

The potential for this particular surprise lies in the way the gay couples in Obergefell v. Hodges have asked the court—with the support of the federal government—to decide the case. They’re seeking not just the recognition of a constitutional right to same-sex marriage, but a decision doing so on the basis of a legal doctrine called “heightened scrutiny.” Because the appellate court that decided Obergefell did not apply heightened scrutiny, the justices could decide only that heightened scrutiny should have been applied and then send the case back to the lower court to determine whether banning gay marriage survives under that standard. The justices did something similar two years ago in an affirmative-action case—with eight of the nine justices signing on—and could do it here, too. If they do, it could prove to be a win-win-win.

I alluded to this myself some months ago in my Open Letter to the US Supreme Court, when I wrote:

But as I watch conservatives across the country grand standing and trying to push these so-called religious liberty laws, here is the question, I want to see the chief justices address:

Are LGBTQ persons a protected class, and if not why shouldn’t they be?

From my perspective, that’s the real issue that these religious liberty laws will turn on. Courts have already ruled that gays and lesbians are singled out for discrimination. I believe in the Prop 8 case, the judge ruled that LGBT is a protected class. Unfortunately that case was so botched, that the judge’s ruling is rarely cited. The Supreme Court ruled that the anti-LGBT parties had no standing and so the circuit should not have heard the case. So what is it SCOTUS, are we or are we not a protected class similar to race or gender, or a host of other acknowledged groups of people?

Heightened Scrutiny, and treating LGBT as a protected class opens the doors for full equality. An inclusive ENDA? For sure? Other protections? Definitely. While there may be legal battles ahead, the ground work will be there for any judge to find in favor of full equality, if heightened scrutiny is applied and a part of this SCOTUS decision.

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