Strict Scrutiny for LGBTQ?

Due to a new study that is currently being conducted by DePaul University in Chicago, LGBTQ may get their day in court as a class of people protected under strict scrutiny. According the NY Times article, the study may show that homosexuality is an immutable characteristic. The article reads:

"The Cabreras hope the findings will help silence critics who say homosexuality is an immoral choice.

If fresh evidence is found suggesting genes are involved, perhaps homosexuality will be viewed as no different than other genetic traits like height and hair color, said Julio, a student at DePaul University in Chicago.

Adds his brother, ''I think it would help a lot of folks understand us better.''

The federally funded study, led by Chicago-area researchers, will rely on blood or saliva samples to help scientists search for genetic clues to the origins of homosexuality. Parents and straight brothers also are being recruited.

While initial results aren't expected until next year -- and won't provide a final answer -- skeptics are already attacking the methods and disputing the presumed results.

Previous studies have shown that sexual orientation tends to cluster in families, though that doesn't prove genetics is involved. Extended families may share similar child-rearing practices, religion and other beliefs that could also influence sexual orientation.

Research involving identical twins, often used to study genetics since they share the same DNA, has had mixed results.

One widely cited study in the 1990s found that if one member of a pair of identical twins was gay, the other had a 52 percent chance of being gay. In contrast, the result for pairs of non-twin brothers, was 9 percent. A 2000 study of Australian identical twins found a much lower chance.

Dr. Alan Sanders of Evanston Northwestern Healthcare Research Institute, the lead researcher of the new study, said he suspects there isn't one so-called ''gay gene.''

It is more likely there are several genes that interact with nongenetic factors, including psychological and social influences, to determine sexual orientation, said Sanders, a psychiatrist.

Still, he said, ''If there's one gene that makes a sizable contribution, we have a pretty good chance'' of finding it.

Many gays fear that if gay genes are identified, it could result in discrimination, prenatal testing and even abortions to eliminate homosexuals, said Joel Ginsberg of the Gay and Lesbian Medical Association.

However, he added, ''If we confirm that sexual orientation is an immutable characteristic, we are much more likely to get the courts to rule against discrimination.'''

Many of the predominant reasons given for not striking down laws regarding prohibition of same-sex marriage for example rely upon the fact that the LGBTQ segment of our population are not protected under strict scrutiny which requires that the law be "narrowly tailored" and have a "compelling interest." Right now, at best, LGBTQ are protected under a degree of scrutiny called "rational basis." All this analysis requires for a law to pass constitutional muster is that it be reasonably related to an important governmental objective. In the case of same-sex marriage, this "important governmental objective" has been said to be a concern for the proper environment in which to rear children (with a mother and father).

Obtaining Rights: Not an All or Nothing Game

At the foot of the lamps located in the courtyards of the US Supreme Court are little metal replicas of turtles. Why? These turtles are supposed to represent the "slow but steady pace of justice." The rationale for these turtles is quite reminiscent of the saying that the arc of history is long, but it always bends toward justice. Indeed, it seems that it always does. While history may take some backwards steps every now and then, our countries history has seemed to move in a direction which gives those disadvantaged more rights.

"We the people," when the US Constitution was penned in 1789 constituted a much more different demographic than "We the people" today. Women and African Americans were not part of that demographic. Perhaps only white property owning men were the only ones that constituted the "people" back then.

Equal justice under law is something that is an ideal. Never is it ever a reality. It's an ideal that we as a country strive for and that takes time to accomplish and attain. Perhaps this is why those groups fighting for certain rights nowadays realize that the choice isn't really all or nothing. Baby steps are required. Incrementalism. And sometimes when change in favor of more rights takes place, this change can actually be counterproductive.

Recently The Washington Post ran an article commenting on this very phenomenon about the gay rights movement in Russia. There is a divide between those that believe that the gay rights movement is actually engendering more homophobia and creating an argument against giving gay men and lesbians more rights. While it seems that the backlash against the gay rights movement in Russia would have happened anyway, the degree to which the backlash is occurring may be different had the rights movement taken a more back seat approach and therefore encountered less opposition.

And while the opposition that the gay rights movement is facing in Russia may not necessarily apply to the gay rights movement here in the US, it is certainly interesting to consider that not too long ago, opposition to the same-sex marriage ruling in MA sparked a similar "backlash" against the gay rights movement.

Communication Between the Branches Sometimes Lacking

The recent ruling of a VA judge striking down driving fees as unconstitutional since they only apply to VA residents and not all who use the VA roads is illustrative of the sometimes lack of communication between the legislative and judicial branches of government--even at the state level.

The law which was created in order to finance a transportation bill that the VA legislature had passed violated the equal protection clause of the US Constitution since it only applied to state residents and not all who used VA roads. The ruling is a clear indication of what the judge believes to be constitutional: a law which applies to everyone using VA roads--not only VA residents. It is a simple change in language which could have been quickly remedied while drawing up the bill instead of dragging the bill through a hefty legal process, wasting time and resources of government that could better be spent elsewhere.

Only in California...

It must be a slow newsday in the world today. The NY Times just recently reported that gay California inmates will be allowed to have so-called "conjugal visits" just as their heterosexual counterparts.

Gay rights groups such as the National Center for Lesbian Rights in SFO called the decision a "great leap forward" in the movement for equality. These visits allow more than just partners of gay inmates to visit. Family members and children have often utilized this time to visit with their mothers and fathers who may be imprisoned.

The decision by the California comes after threats to sue over the policy which banned same-sex partners from visiting inmates because the government did not view them as family. Equality California says that there was just no reasonable justification for having the policy in place.

While gay rights advocates are happy about the change in policy there are indeed more important issues that the movement could focus on at this time. The perception about "conjugal visits" is one of moral depravity and impropriety. While some family members do visit inmates during these visits, it is highly associated and suggestive of sexual activity with an inmate's partner. Is this what the movement is concerned with? If the gay rights movement is to appear upstanding enough to earn the rights of marriage equality it must do it through means that also appear respectable and avoid getting caught in the wayside.

TB, Public Health & Individual Civil Liberties

A man with a particularly dangerous drug resistant strain of TB was recently quarantined by the U.S. government in Denver, CO. The man--Andrew Speaker--was planning to fly to Paris from Atlanta, GA, after having tested positive for TB. He alleges that his doctor only "preferred" that he not fly. Apparently no medical professional had made it explicitly clear to him that he could not fly as he would infect and endanger those flying with him.

The attention that this story has garnered, however, raises an interesting constitutional question about balancing individual liberties with the common good. If in fact Mr. Speaker had been prohibited to fly and if his now apologetic self were not as caring for the health of others, would the U.S. be able to curtail his "right to be left alone" over the concern of possible infection during air travel? What about equal protection? Can the government treat individuals differently based on their health status? It is a point that has been raised before by Professor Lawrence Gostin of the Georgetown Law Center. In analyzing the World Health Organization International Health Regulations, Gostin concludes that sometimes compulsory measures against individuals with infectious diseases may be justified. He says:

"Yet, infectious disease powers curtail individual freedoms, including privacy (eg, surveillance), bodily integrity (eg, compulsory treatment), and liberty (eg, travel restrictions and quarantine)....States should have the power to sanction individuals with dangerous contagious diseases who refuse medical interventions."

It is hard to come to a conclusive answer. Not much precedent exists on the issue. How the justices would perceive the actual issue at hand would also be another question. Would it be an issue of national security? Could they perceive Mr. Speaker as essentially a vessel for spreading a hazardous biological weapon? Or would the issue be a more complicated balancing act, depending upon how serious the actual infection was? Sick people fly on airplanes all the time, but in this case the type of infection mattered.