It is interesting in that yesterday the Republican members of the Senate Judiciary Committee grilling Elena Kagan were addressing the same issue yesterday in their hearings. Harvard (where Kagan worked) has a policy of denying direct military recruiting on campus due to the "Don't Ask, Don't Tell" Policy. The senators seemed to believe that this meant Kagan was against the military and therefore un-American. I wonder if the good senators would see the high court as betraying the nation in this decision? Politics is such a complicated (and distasteful) thing.

I wish that Ginsberg had written what the headline says, but she didn't. The Court didn't hold—or even imply—that sexual orientation is a suspect or quasi-suspect class for the purposes of the Fourteenth Amendment. What it did hold—which, I think, is enough to be excited about in itself—is that a policy, or in essence a statute, withholding support to parties that discriminate on the basis of sexual orientation will not run afoul of the First Amendment guarantee of freedom of speech and association in a limited (or designated) public forum.

I use all this legal jargon to make clear that this is a heavily qualified decision. What it does mean is (a) the Court accepted that persons of homosexual orientation are in fact a discrete and definable class; (b) it can be statutorily protected without running afoul of freedom of speech and association.

What it does not mean is that (a) the class of homosexual persons is protected by the Equal Protection Clause of the Fourteenth Amendment, i.e., I think Perry v. Schwarzeneggar remains a case of first impression; and (b) whether such a statutory policy offends the Free Exercise Clause.

I hope we keep winning, but let's not overestimate how far we've gotten. Of course, free legal advice is worth every penny you pay for it.

Mike Lockaby

Mike is right on the law in federal courts. But for what it's worth, the California Supreme Court has declared that sexual orientation is a protected class, with any government classification based on sexual orientation subjected to strict scrutiny. That means state and local government can make classifications based on sexual orientation only if they are narrowly drawn to serve a compelling government interest (which in practice means almost never). The California Supreme Court was the first in the nation to do this.

That ruling was part of the decision in the Marriage Cases. Proposition 8 took away marriage equality, but it did not affect the treatment of sexual orientation as a suspect classification -- a landmark decision in its own right.

I think it's unfortunate that the common vernacular meaning of "protected class" is too often superimposed over the more limited use of the phrase in legal decisions. Its proponents use the phrase to "frame" an inflammatory straw man.

Like "separate but equal," "protected class" is used to distort reality. Stating that all individuals (gays straight, black, white, male female, Muslim, Episcopalian, etc) have equal rights under the law, and thus may not be made subject to discrimination does not really mean "protected" or "specially entitled." It means "equal" - quite literally nothing more and nothing less.

Confusing the two meanings only feeds into the inflammatory rhetoric of those who try to justify intolerant and discriminatory policies. In reality, they are trying to claim a mantle of official recognition by the state, or some legitimate sub-division of it to discriminate.

"I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State." Thomas Jefferson