Suspect Class

Saturday 6 March 2004.
 

As an individual, a homosexual has all of the rights provided to all individuals in the United States. As couples, homosexuals are denied some rights, which are granted to heterosexual couples. A FoxNews.com, in a partial transcript of a “Special Report with Brit Hume” who was speaking to Douglas Kmiec, Law Professor, Pepperdine University the idea of a “suspect class” was raised. Professor Kmiec was also quoted, as saying the recent SJC ruling in the Goodridge vs Department of Public Health “is also very much an example of raw, judicial activism.” http://www.foxnews.com/story/0,2933,103523,00.html

The following quote is written in reference to homosexuals and their relationship to being a “suspect class”.

“ The reason is that, until now, the Supreme Court has correctly refrained from putting homosexuals on par with racial minorities or women as a class of citizens deserving of such high protection that any state action discriminating against them must survive the Court’s strict scrutiny (as the Court calls them, a "suspect class"). This is because science proves that homosexuality is not an immutable characteristic as is race or gender, and because as one of the most well-funded political lobbies in the nation, homosexuals do not have the political powerlessness so clearly exhibited by African-Americans under slavery and segregation.” http://www.frc.org/get.cfm?i=PV03F01

There are four Indicia of Suspectedness that can be used to determine if a group is a suspect class, history of purposeful discrimination, political powerlessness, immutable trait, and grossly unfair. In Lawrence vs Texas, a legal challenge to homosexual sodomy the Supreme Court narrowly ruled that sodomy was a matter of privacy between two consenting adults. This case was not about same-sex marriage, nor did it conclude that homosexuals were a “suspect class.”

“When a group fails to qualify as a suspect class, which homosexuals have repeatedly done, they are prohibited from appealing to the Equal Protection Clause of the United States Constitution, unless they are being deprived of "fundamental rights." Individual homosexuals have all the fundamental rights accorded to every citizen of the United States. Included as fundamental rights are: the right to vote, the right to interstate travel, the right to privacy, and the First Amendment rights of free speech, freedom of the press, freedom of assembly, freedom of petition, freedom of religion, and freedom from the establishment of religion.” http://www.family.org/cforum/research/papers/a0002964.html

The following information is from a web site, “Text Assist for Suspect Classes Flowchart” http://classes.lls.edu/archive/manheimk/114d3/echarts/suspectx.htm

History of Purposeful Discrimination

“Racial or religious minorities may have been given little or no chance to succeed in society. Barriers preventing full participation included limiting education for African Americans and women (partially because of the belief that neither group was capable of learning and were so worthless as human beings as not merit the expenditure of time and effort to educate them) and then passing laws prohibiting voting. The discrimination in these types of cases is intentional and those doing the discriminating are doing it for the purpose of limiting the groups access to and effect on society in general. The stigma of inferiority that has been imposed on the members of suspect classes by society may become a self-fulfilling prophesy and the groups will begin to accept society’s view of them as true and valid, perpetuating the vicious circle of helplessness and social disdain.”

Political Powerlessness

“Individuals belonging to the suspect classes are either structurally or functionally excluded from the process. The history of previous discrimination, historical lack of education, and the entrenched feelings that their votes will not count, has created a situation where minorities and women are reluctant to vote or run for office. These barriers are very significant. Although there are many laws that guarantee women and minorities all the rights guaranteed to white men, there are still very few women and minorities in high positions in the government. Furthermore, it is much more difficult to mobilize women or minorities to vote.”

Immutable Trait

“There is no way to change the distinguishing characteristic that places the individual into the suspect or quasi-suspect class. Another way to see this is that there is no free entry into and egress this group. This is the difference between race or gender which cannot be easily changed and a characteristic like wealth, which, at least theoretically, can be altered (Note: Wealth is not a suspect class unless it is a proxy for race, alienage, or another suspect class).”

"Grossly Unfair”

“Is the discrimination or disparate effect of a facially nondiscriminatory law so egregious as to offend common precepts of decency.”

Homosexual behavior has been tolerated throughout history by most societies and cultures. By many of those advocating for homosexuality the idea of a “homosexual” as a distinct individual is a recent invention. The “homosexual” seen as a distinct individual is a “social construct” and is historically traced to the 1860s in Germany. There is still no way to identify who is a homosexual, modern scientific scrutiny has failed to do so. It continues be behavior and acts, homosexuality which defines the individual as a homosexual.

There are several national homosexual advocacy groups; one is the Human Rights Campaign. This group was founded in 1980 and today has more then 500,000 members according to their web site. They are America’s largest gay and lesbian organization, who lobbies members of Congress in Washington DC, mobilizes grassroots action, and attempts to increase public understanding through innovative education and communication strategies. They are currently running a one million dollar national ad campaign promoting same-sex marriage. This year they have moved into their new national headquarters in Washington DC on Rhode Island street, near our national government. This 60,000 square foot building was purchased and remodeled for around 25 million dollars.

The following quote is from a book written by a gay historian.

“It isn’t at all obvious why a gay rights movement should ever have arisen in the United States in the first place. And it’s profoundly puzzling why that movement should have become far and away the most powerful such political formation in the world. Same gender sexual acts have been commonplace throughout history and across cultures. Today, to speak with surety about a matter for which there is absolutely no statistical evidence, more adolescent male butts are being penetrated in the Arab world, Latin American, North Africa and Southeast Asia then in the west.

But the notion of a gay “identity” rarely accompanies such sexual acts, nor do political movements arise to make demands in the name of that identity. It’s still almost entirely in the Western world that the genders of one’s partner is considered a prime marker of personality and among Western nations it is the United States - a country otherwise considered a bastion of conservatism - that the strongest political movement has arisen centered around that identity.

We’ve only begun to analyze why, and to date can say little more then that certain significant pre-requisites developed in this country, and to some degree everywhere in the western world, that weren’t present, or hadn’t achieved the necessary critical mass, elsewhere. Among such factors were the weakening of the traditional religious link between sexuality and procreation (one which had made non-procreative same gender desire an automatic candidate for denunciation as “unnatural”). Secondly the rapid urbanization and industrialization of the United States, and the West in general, in nineteen century weakened the material (and moral) authority of the nuclear family, and allowed mavericks to escape into welcome anonymity of city life, where they could choose a previously unacceptable lifestyle of singleness and nonconformity without constantly worrying about parental or village busybodies pouncing on them.” (Martin Duberman. Left Out. South End Press. Cambridge, MA, 2002 p. 414-415.)

Justice Marshall in the 29th footnote of her opinion declares that homosexuals are a “class”. Is she implying here that homosexuals are members of a “suspect class”?

www.state.ma.us/courts/courtsandjudges/courts/supremejudicialcourt/goodridge.html

“If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit. [FN29]”

“29. We are concerned only with the withholding of the benefits, protections, and obligations of civil marriage from a certain class of persons for invalid reasons. Our decision in no way limits the rights of individuals to refuse to marry persons of the same sex for religious or any other reasons. It in no way limits the personal freedom to disapprove of, or to encourage others to disapprove of, same-sex marriage. Our concern, rather, is whether historical, cultural, religious, or other reasons permit the State to impose limits on personal beliefs concerning whom a person should marry.”

The following quotes are taken from the minority opinion that was written as apart of the SJC response from the request by the MA Senate. This request was asking the SJC if civil unions for same-sex relationships offering all the protections and benefits of marriage would satsify the ruling from Goodridge v Department of Health. These quotes speak to the issue of "suspect class." Justice Sosman appears to understand that the majority is implying that homosexuals are a "suspect class."

“The Goodridge opinion employed repeated analogies to cases involving fundamental rights and suspect classifications, while ostensibly not adopting either predicate for strict scrutiny. Id. at 359-361 (Sosman, J., dissenting). Today’s answer to the Senate’s question discards the fig leaf of the rational basis test and, relying exclusively on the rhetoric rather than the purported reasoning of Goodridge, assumes that discrimination on the basis of sexual orientation is prohibited by our Constitution as if sexual orientation were indeed a suspect classification. [FN6] If that is the view of a majority of the Justices, they should identify the new test they have apparently adopted for determining that a classification ranks as "suspect"— other types of persons making claims of a denial of equal protection will need to know whether they, too, can qualify as a "suspect" classification under that new test and thereby obtain strict scrutiny analysis of any statute, regulation, or program that uses that classification. No analysis of why sexual orientation should be treated as a suspect classification was provided in Goodridge, and none is provided today. Yet that is, apparently, the interpretation that is now being given to Goodridge. The footnote disclaimer of any resort to "suspect classification" and corresponding "strict scrutiny" analysis, ante at n. 3, rings hollow in light of the sweeping text of today’s answer.” (MARTHA B. SOSMAN, J., OPINIONS OF THE JUSTICES TO THE SENATE. SJC-09163.)

“This assumption is most explicit in the answer’s invocation of the concept of "separate but equal," suggesting that the different naming of the statutory scheme contains the same type of constitutional defect as that identified in Brown v. Board of Educ., 347 U.S. 483, 495 (1954). See ante at. Of course, that landmark case involved a classification (and resulting separation) based on race, a classification that is expressly prohibited by our Constitution (art. 1 of the Declaration of Rights, as amended by art. 106 of the Amendments of the Massachusetts Constitution) and has long been recognized as a "suspect" classification requiring strict scrutiny for purposes of equal protection analysis under the Fourteenth Amendment to the United States Constitution. See McLaughlin v. Florida, 379 U.S. 184, 191-192 (1964), citing Bolling v. Sharpe, 347 U.S. 497, 499 (1954), and Korematsu v. United States, 323 U.S. 214, 216 (1944). Classifications based on race, and hence any separate but allegedly equal treatment of the races, "must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States." McLaughlin v. Florida, supra at 192. It is that "historical fact" concerning the "central purpose" of the Fourteenth Amendment, id., not how "elegantly [it] decries the denial of equal protection of the laws ’to any person,’ " ante at n. 3, that subjects racial classifications to strict scrutiny. Here, we have no constitutional provision that has, as either its "central" or even its peripheral purpose, the elimination of discrimination based on sexual orientation. And, notwithstanding the "elegant and universal pronouncements" of our Constitution, id., all but a very few classifications are reviewed under the mere rational basis test.” (Footnote 6, MARTHA B. SOSMAN, J., OPINIONS OF THE JUSTICES TO THE SENATE. SJC-09163.)


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