Religion & Law

We've already noted President Obama's recommendation that laws discriminating against gays and lesbians be subject to heightened scrutiny -- i.e., that rational basis review of bans on same-sex marriage is not appropriate.  The question that hasn't received much attention, though, is why did Obama stop with intermediate scrutiny (the standard applied to gender discrimination)?  Why didn't he endorse strict scrutiny (the standard applied to racial discrimination) as the appropriate standard for laws discriminating against gays and lesbians?  Jason Mazzone weighs in:

[A]nother explanation for the administration's choice seems unavoidable: the administration picked the level of scrutiny least likely to alienate Black voters. Numerous polls demonstrate that Blacks constitute the ethnic group least likely to support same-sex marriage and by a significant margin (though perhaps as Obama's thinking "evolves" on same-sex marriage, other Black voters might change their minds as well). For many years, (certain) Black commentators have expressed offense at any comparison between racial prejudice and discrimination on the basis of sexual orientation. In particular, comparisons between bans on same-sex marriage and anti-miscegenation laws have drawn sharp criticisms. It follows that Blacks will be the least likely group to accept the administration's argument for special constitutional protections for gays and lesbians--especially when it comes to same-sex marriage.

So the administration is playing to both sides: recognizing the need for stronger protections for gays and lesbians while leaving race as a special category that deserves the strongest judicial protections. In this way, the administration can avoid (or try to avoid) any need to argue that the prejudice underlying the historical bans on interracial marriage has a contemporary manifestation.

Can you come up with any reasons to choose intermediate over strict scrutiny that are not rooted in political considerations?