An argument could be made that drunk drivers pass 1 & 4. (Playing devil’s advocate) Alcoholism is a disease that has a very poor rate of cure. When under the influence, people do crazy things like drive.
I know my one line post got lost in the shuffle (even I had to scroll up and down a couple times to find it) so I’ll ask again, this time directly to Bricker:
Is there a legal definition of “family” and/or “a family”? What is it?
As I have noted I am not reading same sex marriage into the Consstitution. I am reading non-discrimination in the Constitution.
Rather stretching it but let’s allow it to stand. Most certainly there is a compelling state interest in stopping drunk drivers. I have seen no one offer a compelling state interest in preventing same-sex marriages.
No, you didn’t. I don’t know what statutory authorities the author of that article used to compile the list, but it’s telling that there’s no direct cite to an actual court case. Usually, when the court annuciates rules like that, it does so by mentioning them in an opinion.
So far as I’m aware (and remember this was never my area of practice) the controlling law and analysis is laid out in *Cleburne v. Cleburne Living Center, Inc. *, 473 U.S. 432 (1985):
If I’m missing a seminal case that claims that those four tests you mention are the way to determine a suspect class, I’m all ears. But the only suspect classes that have been defined that I’m aware of for strict scrutiny are religion, alienage, and race, and for intermediate scrutiny only gender.
IANAL, but I don’t think there is. There are legal definitions of particular family relationships or whether a person is married or the legal guardian of another person, or too closely related to marry, but “family” is not a precise, legal term.
OK, this is just flat out wrong. If you are going to invoke Scalia, at least get his legal theory right. He is a textualist. He specifically opposes using the “intention of the authors.”
And as I have said multiple times, and many people much smarter than me have said, it is perfectly possible to make an argument based on original intent that the constitution and its amendements were deliberately framed in such as way as to allow expansion of groups covered over time.
Whack-a-Mole,
First, while we disagree on much of this, I think you offer an interesting OP. Really.
Assuming that this is the test, or should be, I can see how criterion number one might be met, (is met, for most) and number two, of course. But Number 3? I’d say that gays constitute one of the most potent minority groups in existence. And these, days I don’t think number four is true either.
OUt of curiosity, are you of the mind that this should be the criteria?
Oh, of course. Our stunning victory in getting Prop 8 in CA, Prop 102 in Arizona, Prop 2 in Florida, and the gay adoption/foster ban in Arkansas rejected is proof of this, no?
In CA, they forced an appeal of a vote of 61% of the populace. And this is about “marriage”. As I’ve said more than once before, I think people would be MUCH more receptive to a position that argued for equal rights and left marriage alone. I really think the more the latter is pursued the more problematic the former (and much more important) will be in gaining.
Remember IANAL but I’ll give this a shot.
We have what I posted in the OP which seems to be the origin of suspect classes. Remember if you want to argue the notion of suspect classes that is fine but keep in mind it seems the test the SCOTUS works under.
You [Bricker] cited Cleburne and highlighted some points:
Ok fine. Please point out the legitimate state interest in this test.
For this I would say what is race? As a definition and why does it differ in practice from homosexuality? You are born of a given race. It is genetics and something that cannot be changed. I cited in the OP a genetic argument for homosexuals. There are very few who choose that lifestyle. They are born that way. How does that differ, in essence, from race? Your genetic code programmed you for certain characteristics. Some of them are your outward appearance and some program you for your sexual preferences. Why should one be relevant and not the other?
This does not directly speak to same-sex marriages but I do not think it is a stretch to apply this as well. If legislative classifications based on gender are worthy of a closer look why not sexual preference? Says it right in your quote, “That factor generally provides no sensible ground for differential treatment.” How is sexual preference different in that?
Again my point is the law is being amazingly inconsistent. My sense of the law is it is supposed to be consistent. It applies equally to all or if it doesn’t there is a compelling interest to define a difference. I have yet to see any compelling interest for different treatment in this case.
I will finish that while I do not know how the Wiki pulled that list (hey…it’s Wikipedia which I think we all know is not authoritative) I find it amazing if the courts have no actual test for this and just kind of wing it. Maybe that is the case but man…talk about dodging their responsibilities if they have…
If the whole thing is about the word “marriage” rather than denying us any rights at all, then why do most anti-SSM ballot measures include language that would also deny civil unions?
I don’t know. My guess is that people have their hackles up because they see they believe that “marriage” is threatened. and they might think some skullduggery is afoot: “Ahhh, they say they want civil unions now, but…”. But that’s just a guess. Don’t get me wrong, I have no doubt there are plenty of people that really hate gays, for religious or just plain old bigotry reasons. But I think we should respect the line between this and the other thread and continue this discussion over there.
Well, given Bricker’s post perhaps that is not “the test”. If Bricker is correct it may may be there is no definitive test. Like it or not that is the current state of affairs.
That does not stop me from ranting about it of course. 
One of the current suspect classes is religion. I’d say they are exceptionally politically potent yet there they are. It seems the Mormons largely funded the Prop-8 fight in California and beat what you describe as “one of the most potent minority groups in existence”. Apparently they are less potent than Mormons.
As for whether I think what I posted “should” be the criteria I have not really thought about it. I am trying to keep this to the law as stands per the OP. As noted before wishful thinking on my part is not a basis for law…more’s the pity ;).
Perhaps I’m missing something, but I think Bricker is forgetting the infamous footnote 4 of Carolene Products, the origin of the suspect class test.
The text of FN4:
This FN has frequently been the basis of discussion of which classes are “suspect,” and is usually cited as the authority for the four-part test in the OP, which is well-accepted in constitutional law.
Yeah, I think I am missing something. Isn’t that footnote (a) a footnote, (b) entirely dicta, (c) in a case involving “filled milk” from being shipped interstate commerce, which (d) merely says that they do NOT have to decide if or how to weigh those factors?
I know that it paved the way for varying levels of scrutiny, butso far as I’m aware, no Supreme Court decision has laid out those factors as “the test” in the same way that, say, Strickland lays out a specific two-pronged test for ineffective assistance.
But as I said, it was never my area, and I would certainly be interested in learning the contrary.
Just to consider political potency
How many openly gay
President
Vice President
Congressperson
Supreme court justice
State Govenor
Gay specific political party
are there?
can any other suspect class say that? Hmmm
Heh, that’s all true. But built on a house of cards though it may be, equal protection jurisprudence has centered on those words and ideas as the touchstone that various cases refer to in laying out the analysis.
That’s mostly correct. The Supreme Court has not decided all that many cases about who gets suspect class status. They avoid the question like the plague, which is why the OPs question is, as yet, unresolved. We basically have Cleburne, which you noted, as well as Frontiero, 411 U.S. 686 (gender), and Murgia, 427 U.S. 307 (age). However, from those cases you can pretty much figure out the key factors, and most lower courts have done so.
Lower courts have almost universally applied some variation of those four parts to analysis of whether a given class is suspect. See, e.g., High Tech Gays v. Defense Industrial Clearence Office, 892 F.2d 563 (9th Cir. 1990) (“To be a ‘suspect’ class, homosexuals must 1) have suffered a history of discrimination; 2) exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; 3) show that they are a minority or politically powerless.”).
I’m confused by the ‘political potency’ criteria. Women and blacks, for example, have much more political potency than they did originally. Does that somehow mean discrimination against them requires less scrutiny?
The argument is that if a group has sufficient political power, it does not need legal protection from discrimination, because it can take care of itself. Laws don’t tend to discriminate against heterosexual white males (whatever Fox news might say), nor are mainstream Christians routinely subject to oppressive laws.
The courts don’t want to decide things if they don’t have to - powerful groups can generally look after their own interests through the democratic process. Of course, according to Scalia, gays don’t need EP protection because of their influence in the media…