Fundamentally, the First Circuit's analysis follows an overriding
theme that has been found in some of the more striking gay rights victories in
the Supreme Court. In 1996, the high court struck down a provision in Colorado's constitution
that prohibited the adoption of municipal and state regulations seeking to
protect gays from discrimination, deeming it to be the "disqualification
of a class of persons from the right to seek specific protection from the law."
In 2003, the
Court invalidated Texas' criminal statute punishing homosexual sex and, by
extension, all other state sodomy laws. This trend toward equal application of
the law, particularly on the basis of traits over which a person has no
control, can be dated at least as far back as the superbly aptly-named 1967
case of Loving v. Virginia, where the
Supreme Court invalidated a state ban against inter-racial marriage.
The basic point is elegantly simple: Unless there's a quite good
reason for distinguishing between groups on the basis of some relevant factor
over which the member has no control, the government, whether it be state or
federal, must demonstrate some palpable societal or governmental interest in
making a distinction. In the series
Watch beginning with the Massachusetts Supreme Judicial Court's 2003 landmark
Goodridge decision conferring
marriage rights on same sex couples, I explained
some detail the powerful lure that legal equality has in modern
constitutional jurisprudence. The Declaration of Independence, after all,
declared that "all men are created equal."
Even older is the Biblical injunction "do not do under others what you
would not have them do unto you." Or, more colloquially, "what's sauce for the
goose is sauce for the gander." It is an
idea that is as majestic as it is mundane.