Why aren't homosexuals a "Suspect Class"? (legal definition)

[Whack-a-Mole]

With all the Prop-8 (and other similar ones) hoo-hah going on there have been a number of threads exploring the legality of the Proposition. Most people arguing against it trot out the Equal Protection clause of the Constitution but the legal eagles shoot it down because homosexuals are not deemed a “suspect class” thus not granting them “strict scrutiny” when a court tries to determine the constitutionality of a given law.

On the face of it I am incredulous at that state of affairs but, not being a legal eagle, figured it was worth looking up. First the notion of where “suspect class” came from:

The concept of suspect classifications was first discussed by the Supreme Court in korematsu v. united states, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944). The Court upheld the “relocation” of Japanese Americans living on the West Coast during World War II, yet Justice hugo l. black, in his majority opinion, stated that

*all legal restrictions which curtail the Civil Rights of a single group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.*

SOURCE: Suspect class legal definition of Suspect class

Seems reasonable enough and I am not sure anyone really argues against that (if I am wrong I am sure someone here will let me know).

Then I found what I presume is necessary to be included as a suspect class:

To be considered a suspect classification in the U.S. a group must meet all of the following criteria:

1. The groups’ characteristics are immutable. (Race, national origin)
2. The group shares a history of discrimination.
3. The group is politically impotent.
4. The group is a discrete and insular minority.

SOURCE: Suspect classification - Wikipedia

So let’s go through it:

1. Homosexuals are, for the most part, born that way. There is a genetic basis for it. (cite) Granted there may be some few who choose a homosexual lifestyle but far and away the majority of homosexuals will tell you that’s just how they are.

2. As a group they certainly share a history of discrimination and a long history of it at that. I hope this is self evident (just look at Prop 8 for the most recent example).

3. Not sure how “politically impotent” is defined. Of course the gay community is politically active but they are also a distinct minority (population wise) of the populace. They must get others to agree with them if they wish to advance their case. Seems impotent enough to me.

4. Again not exactly sure what this one is asking about “insular” but they are a discrete group and they are a minority.

So I’d say they meet the criteria across the board.

So, let’s see what the Equal Protection clause says (highlighting mine):

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
That looks pretty unambiguous to me too. Prop-8 would seem to me to fly squarely in the face of it. The homosexual community, via Prop-8 and its ilk, are most assuredly NOT being provided “equal protection of the laws”. Indeed, they are being actively discriminated against by the law.

I cannot even see how a die-hard conservative judge like Scalia could read that otherwise. Particularly since Scalia is a textualist who wants to apply the Constitution as written. Here you have a law being explicitly targeted at a distinct group with no compelling state interest to do so.

So, it walks like a duck, quacks like a duck, has webbed feet like a duck, has feathers like a duck yet our legal system can look at it and say, “That’s not a duck because we say so!”???

I just don’t get it…not even remotely do I see a way around the obvious. What am I missing here?

[Antinor01]

The California Supreme Court ruled in May that homosexuals are a suspect class.

[Jack_Batty]

Not to totally hijack this, but I gotta wonder again, why the hell are Christians a “suspect class” (I assume based on nondescrimination laws always including religion as a “class” or “criteria”).

The only point they remotely touch is the discrimination one, and that has loooooong past in this nation.

[Sinaijon]

@Jack_Batty

why the hell are Christians a “suspect class”

Religion is a suspect class in general, because it says so right there in the constitution.

[Ethilrist]

I see it as being a much simpler issue: creating a law that says a particular type of contract is only available between a man and a woman is no less discrimination than creating one which says only women can vote, or that only black people can buy houses in certain parts of town. I have never understood how anti-SSM laws have withstood any legal scrutiny.

[villa]

@Whack-a-Mole

I cannot even see how a die-hard conservative judge like Scalia could read that otherwise. Particularly since Scalia is a textualist who wants to apply the Constitution as written. Here you have a law being explicitly targeted at a distinct group with no compelling state interest to do so.

Well you have to remember suspect class analysis has no textual base in the constitution. Scalia follows certain forms of analysis, one might say charitably, out of respect for stare decisis. I think it is highly unlikely he would have chosen EP analysis to evolve as it has.

Scalia has also (and I think it is in his Lawrence dissent) disputed the political impotence of homosexuals as a group.

Personally, I think it is inevitable that sexual orientation will become recognized as a basis for EP challenges. I doubt it will get to strict scrutiny, but will instead reside with sex based laws in an intermediate status.

[Whack-a-Mole]

@villa

Well you have to remember suspect class analysis has no textual base in the constitution. Scalia follows certain forms of analysis, one might say charitably, out of respect for stare decisis. I think it is highly unlikely he would have chosen EP analysis to evolve as it has.

Fine. Toss suspect classes. Just look at the EP clause. A defined group is being actively discriminated against.

Scalia has also (and I think it is in his Lawrence dissent) disputed the political impotence of homosexuals as a group.

Women are not what I would call politically impotent. Nor are Christians or Jews. Or African-Americans for that matter. Knock them all off the list. Seems homosexuals are no more politically “potent” than any of those.

[Bricker]

@Whack-a-Mole

That looks pretty unambiguous to me too. Prop-8 would seem to me to fly squarely in the face of it. The homosexual community, via Prop-8 and its ilk, are most assuredly NOT being provided “equal protection of the laws”. Indeed, they are being actively discriminated against by the law.

I cannot even see how a die-hard conservative judge like Scalia could read that otherwise. Particularly since Scalia is a textualist who wants to apply the Constitution as written. Here you have a law being explicitly targeted at a distinct group with no compelling state interest to do so.

You’re not starting from the right analytical basis.

Yes, Scalia is a textualist – which means he looks to the words of the document itself.

Now, obviously “equal protection” cannot be read completely literally. The government can choose to treat criminals differently than non-criminals when it comes to confining them in prison, for example, even though such treatment is not “equal” in its protection.

So upon what basis do we decided what kinds of classifications are protected?

The text itself provides no unambiguous answer, so Scalia would look at what the people who adopted that amendment were trying to accomplish. Adopted in the aftermath of the Civil War, it was pretty obviously intended to prohibit racial discrimination. In fact, ask yourself this: if that language was intended to apply across the board, why did women seeking the vote need to get the Nineteenth Amendment approved? Why couldn’t they just say, “Hey, look – the Fourteenth already says ‘Equal Protection!’”

The purpose of the Fourteenth, then, was to prohibit racial classifications.

Other classifications are judged by other, looser standards than the “strict scrutiny” that racial ones command. Sexual orientation falls into that group.

Now, you say that the government doesn’t have a rational basis… but you might not be formulating the rational basis analysis correctly.

If the government says, for example, that the primary purpose of marriage is to encourage procreation, you might for example say, “What about all the infertile couples that marry?” as though that disproves the proposition that their interest is rational.

But that’s not how the test works.

In rational basis analysis, the question is: is the measure in question rationally related to the goal? Not “is it the only way of accomplishing the goal?” or “is it the best way of accomplishing the goal?” but merely if it bears some rational relation to it. Because same-sex couples are self-evidently infertile with respect to each other… it does. The fact that same-sex couples may adopt, artificially inseminate, donate sperm to a surrogate, and the fact that infertile opposite-sex couples may marry has no bearing. Those are examples that show there are better ways of addressing this goal… not that the measure is unrelated to the goal.

That’s how rational basis analysis is done.

[villa]

Whack-a-Mole. Remember, I am not defending Scalia, just trying to explain his view…

If you toss suspect classes (as I often think we should), then it still isn’t a slam dunk. Government is allowed to discriminate against groups. It is allowed, for example, to criminalize sex with children, without fear of pedophiles invalidating the law based on equal protection. It is also allowed to ban driving while drunk without alcoholics having an equal protection claim.

The bottom line is that the government under EP analysis has to be able to justify its discriminatory action. Under the present form of analysis, almost ANY government excuse is sufficient to pass rational basis analysis - that for non protected groups. Interestingly enough, since Romer, it is clear that pure animus isn’t sufficient.

It is almost impossible to pass strict scrutiny. Intermediate scrutiny, on the other hand, which I think orientation based discrimination will end up under, is much more of a crap shoot. It’s basically - give me a good reason. Hence there can be separate male and female bathrooms without violating EP.

Then of course we have the whole military type analysis, which the courts have a major habit of punting on.

[Jack_Batty]

@villa

Whack-a-Mole. Remember, I am not defending Scalia, just trying to explain his view…

If you toss suspect classes (as I often think we should), then it still isn’t a slam dunk. Government is allowed to discriminate against groups. It is allowed, for example, to criminalize sex with children, without fear of pedophiles invalidating the law based on equal protection. It is also allowed to ban driving while drunk without alcoholics having an equal protection claim.

That’s a bit of a stretch. It isn’t the groups being discriminated against, its the illegal actions. In reality, although it isn’t a very comforting thought, there is nothing illegal about being a pedophile or an alchoholic.

[villa]

@Bricker

The text itself provides no unambiguous answer, so Scalia would look at what the people who adopted that amendment were trying to accomplish. Adopted in the aftermath of the Civil War, it was pretty obviously intended to prohibit racial discrimination.

That’s not textualism!

You have come to an answer regarding the intent I don’t disagree with, but that sure as hell isn’t textualism, and isn’t the way Scalia would analyse it. Scalia isn’t concerned with what the people were trying to accomplish, but instead with what the words they wrote meant at the time. Nino would certainly not like being though of as an original intent person.

The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated-a compatibility which, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest.

Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring).

[foolsguinea]

Um, homosexuals are a “suspect class.” But they’re not being rounded up, or dispossessed. SSM is not exactly the same as, um, OSM (Opposite-Sex Marriage), so accusations of being denied the same thing heterosexuals have do not hold water with those who use a conservative definition of marriage.

If a gay man wants to marry a lesbian, that’s legal.

I don’t see why this is so hard to understand. Hard to agree with, sure. But to understand?

[villa]

@Jack_Batty

That’s a bit of a stretch. It isn’t the groups being discriminated against, its the illegal actions. In reality, although it isn’t a very comforting thought, there is nothing illegal about being a pedophile or an alchoholic.

Without wanting to argue those examples further, let’s try something easier. The government is allowed to discriminate against young people, based on their age. 16 year olds are not allowed to vote, or drink, or do many things. There isn’t an EP problem there because the government can justify its actions.

Similarly, before Lawrence states could ban sexual activity between members of the same sex. They no longer can, but they are still able to ban voluntary sexual activity between adults, such as sadomasochism. I personally think their rationale behind it is specious, but there you go.

[rivulus]

@Bricker

If the government says, for example, that the primary purpose of marriage is to encourage procreation…[snip]

So… is the government saying this?

Is there a primary purpose for marriage, or is it a cluster of purposes? Including mutual support, for example. I have zero legal knowledge, so I would be curious to find out what has been determined as the purpose of marriage.

[Bricker]

@Jack_Batty

That’s a bit of a stretch. It isn’t the groups being discriminated against, its the illegal actions. In reality, although it isn’t a very comforting thought, there is nothing illegal about being a pedophile or an alchoholic.

No. Sex criminals are required to register as sex offenders, and this requirement can be enforced even though there was no such rule when the crime was committed. Clearly you’re not discriminating against the act in that case; you’re discriminating against a class of persons: those convicted of certain sex crimes.

That classification is permissible, however, in Equal Protection analysis.

[Bricker]

@rivulus

So… is the government saying this?

Is there a primary purpose for marriage, or is it a cluster of purposes? Including mutual support, for example. I have zero legal knowledge, so I would be curious to find out what has been determined as the purpose of marriage.

Yes, they are.

Just to pick one example: in Andersen v. King County, 138 P.3d 963 (Wash. 2006), Washington’s state Supreme Court upheld the state “Defense of Marriage” Act, saying in part:

@Washington Supremes

DOMA does not grant a privilege or immunity to a favored minority class, and we accordingly apply the federal analysis. The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marriage that includes the right to marry a person of the same sex. Therefore, we apply the highly deferential rational basis standard of review to the legislature’s decision that only opposite-sex couples are entitled to civil marriage in this state.

Under this standard, DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. Allowing same-sex couples to marry does not, in the legislature’s view, further these purposes.

[Jack_Batty]

@Bricker

No. Sex criminals are required to register as sex offenders, and this requirement can be enforced even though there was no such rule when the crime was committed. Clearly you’re not discriminating against the act in that case; you’re discriminating against a class of persons: those convicted of certain sex crimes.

That classification is permissible, however, in Equal Protection analysis.

But a sex criminal is not a criminal until he’s committed a crime. I realize this is just semantics, but what I’m getting at is the thought-crime aspect of things. A pedophile who sits in his basement all day long and thinks evil thoughts about kids has not committed a crime until he touches one, or something along those lines. Similarly, an alcoholic can sit in his basement and drink all he likes but he hasn’t committed a crime, for example, until he gets behind the wheel of his car.

That was the crux of my point against **villa’s **discrimination argument. In either case it isn’t the groups of people that is the issue but the actions.

**Villa’s **follow up point makes sense as it relates to the OP.

[villa]

@Jack_Batty

But a sex criminal is not a criminal until he’s committed a crime. I realize this is just semantics, but what I’m getting at is the thought-crime aspect of things. A pedophile who sits in his basement all day long and thinks evil thoughts about kids has not committed a crime until he touches one, or something along those lines. Similarly, an alcoholic can sit in his basement and drink all he likes but he hasn’t committed a crime, for example, until he gets behind the wheel of his car.

That was the crux of my point against **villa’s **discrimination argument. In either case it isn’t the groups of people that is the issue but the actions.

**Villa’s **follow up point makes sense as it relates to the OP.

Well to be honest, the same action divide exists with reference to homosexuals. The descrimination is the result of the banning of particular acts - sex with a member of the same sex, marriage to a member of the same sex, adoption of a child if you have sex with members of the same sex…

Just sitting there thinking how another man looks really damned fine in those jeans isn’t discriminated against in the way you are talking.

[rivulus]

I hope you will permit me a small hijack:

Here is an interesting case involving a castrato from the mid-seventeenth century. It gets to the core of things at about p. 75 onward. The arguments are similar to the gay marriage debate – however, this case has a happy ending. The court apparently granted his request to marry (p. 85).

“In their decision the members of the Leipzig consistory articulated a broader view of the purpose of marriage than solely that of procreation, and acknowledged that sexual relations per se represent an essential part of marriage, even when such an activity cannot produce children… As the consistory pointed out, God never forbade a man who cannot have children to marry. In their reluctance to separate the couple against their wills, the consistory also seems to have held a more modern view of individual freedom than did some of the other principals in this case, who appear to have been unable to grant humanity to the two individuals involved.”(p. 86)

Warms my heart, it does. May people in the not-too-distant future be more willing to “grant humanity” to teh gays… and perhaps re-think the meaning of marriage.

[Jack_Batty]

@villa

Well to be honest, the same action divide exists with reference to homosexuals. The descrimination is the result of the banning of particular acts - sex with a member of the same sex, marriage to a member of the same sex, adoption of a child if you have sex with members of the same sex…

Just sitting there thinking how another man looks really damned fine in those jeans isn’t discriminated against in the way you are talking.

And therein lies my bone of contention. There are very good reasons why sex with children and driving drunk are illegal. Your argument – not that I’m ascribing this viewpoint to you – seems to say that just as alcoholics should be discriminated against because they tend to drive drunk, homosexuals can be discriminated against because some of them want to marry each other.

It just doesn’t equate.