Yesterday, per Andrew Sullivan, plaintiff’s counsel in Perry v. Schwarzenegger sent this letter to Chief Judge Walker, whose ruling in the matter is currently pending:
Sullivan treats this as a watershed. It is not that, in that it does not, singlehandedly, confer the talismanic “protected class” status on gay Americans. It is, however, a step in the right direction. Prior to CLS v. Martinez, no major case conferred a substantive rights on gays qua gays. Lawrence v. Texas, which forbade states from criminalizing sodomy, came close, but because it was decided under the Due Process clause, instead treated homosexuality as a conduct that one engages in, not a status that defines who you as a peson. Reverse that reasoning, and I’m not straight; I’m just a gay guy who, perversely, only sleeps with girls. Who knew!
Martinez moots this diminutive way of looking at the question of gay rights, and slyly adopts Sandra Day O’Connor’s concurrence in Lawrence as guiding, if not controlling law. Apart from validating homosexuality as an identity with legal meaning, it sets up part of the syllogism for eventually connecting homosexuality with other statuses that cannot form a basis for classification, like race and gender, and makes the useful analogy to Loving v. Virginia painfully apparent.
By bypassing Kennedy’s majority opinion in Lawrence, Ginsburg’s lines in CLS also demolish his carefully-constructed wall, designed to keep gay marriage out. Kennedy’s opinion in Lawrence is at pains to explain why sex is not like marriage, and so, we find lines like this:
The [sodomy ban] statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.
Emphasis mine. So Kennedy strove to confine his due process analysis against ever becoming the foundation of a due process right to marriage (which exists in Loving only in dicta). But with Martinez, we don’t need the due process analysis; sodomy isn’t protected conduct just because we ought to be able to engage in that practice, as free men and women, but because it’s a vital part of the gay identity, with which the law ought not to interfere.
The gay rights movement suffers from the lack of a coordinated legal strategy, which the desegregation movement had in spades (and whose architect later sat on the Court — we miss you, Justice Marshall!). But by God, we might just get by without one.