Unfortunately, the constitution and historical jurisprudence does not equate sexual orientation and gender identity, ambiguous and malleable concepts, with immutable features like race, color, and ethnicity as classes worthy of special legal protection.
In its recent marriage decisions, the Supreme Court declined to hold—as did the lower court in one of the two cases—that “sexual orientation” was a constitutionally “suspect” class, comparable to classes of race, color, and ethnicity. Any legal rule that classifies people on a “suspect” basis is usually presumed to be invidiously discriminatory and thus unconstitutional.
We're not there yet; the prop 8 decision effectively side stepped that issue all together.
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