Suspect Class Status
50. The United States Supreme Court applies what is called "suspect-class status" when it wants to give a certain minority group special protection. A suspect class is defined as (1) an obviously distinguishable minority, (2) subject to a history of discrimination, (3) that is so politically powerless as to be in need of special assistance. The United States Supreme Court has established only three suspect classes: (1) race, Loving v. Virginia, 388 U.S. 1, 11 (1967); (2) national origin, Korematsu v. United States, 323 U.S. 214, 216 (1944); and (3) alien status Graham v. Richardson, 403 U.S. 365, 372 (1971); but see Ambach v. Norwick, 441 U.S. 68, 72-75 (1979).
51. Though homosexuals have been granted suspect-class status in a lower court ruling, on appeal in subsequent higher courts including the United States Supreme Court homosexuals have not been granted suspect-class status.
52. Of particular importance concerning homosexuals and suspect-class status are three cases brought before the United States Supreme Court (1) Bowers v. Hardwick, 478 U.S. 186 (1986), (2) Lawrence v. Texas, 539 U.S. 558 (2003), (3) Romer v. Evans, 517 U.S. 620 (1996).
53. Of particular importance, noteworthy, and scientifically valid is that at the time of the ruling in Lawrence v. Texas, 539 U.S. 558 (2003) was that receptive anal intercourse is the highest risk behavior for contacting HIV/AIDS. This has always been highest risk behavior throughout the three decades of the HIV/AIDS epidemic.
54. Of particular importance is an amicus curiae brief (friend of the court’ brief) filed with the U.S. Supreme Court in the case Lawrence v. Texas, 539 U.S. 558 (2003).
55. This brief was filed by 31 pro-homosexual activists groups; including the People for the American Way Foundation, and including some of the leading national gay and lesbian organizations, the Human Rights Campaign (HRC); the National Gay & Lesbian Task Force (NGLTF); Parents, Families & Friends of Lesbians and Gays (PFLAG); the Gay & Lesbian Alliance Against Defamation (GLAAD).
56. The brief is noteworthy because in it these groups cited figures for the number of homosexuals lower than the usual 10 percent of the population is homosexual (10% Homosexual Myth). These groups cited in their legal brief, from a study that was published in 1994, the National Health and Social Life Survey (NHSLS). The results of this study are in a book by Laumann, et al., The Social Organization of Sex: Sexual Practices in the United States. This study reported that "2.8 percent of the male, and 1.4% of the female, population identify themselves as gay, lesbian, or bisexual.
57. Additional information on the 10% Homosexual Myth may be found on www.banap.net in the section Homosexual Myths, in an article titled Ten Percent.
58. Suspect Class Status is important in Goodridge, in that though it was ruled on a rational basis, the majority opinion written by Chief Justice Marshall reads as alluding to and supporting homosexuals being members of a suspect class.
59. Chief Justice Marshall in the majority opinion agrees with the Commonwealth of Massachusetts (Department of Public Health) argument that no fundamental or suspect class is at issue.
60. Chief Justice Marshall writes: The department argues that no fundamental right or "suspect" class is at issue here, [FN21] and rational basis is the appropriate standard of review. For the reasons we explain below, we conclude that the marriage ban does not meet the rational basis test for either due process or equal protection. Because the statute does not survive rational basis review, we do not consider the plaintiffs’ arguments that this case merits strict judicial scrutiny.
61. Chief Justice Marshall authored the majority opinion and uses the word class in two places. (Emphasis added with bold type)
62. Chief Justice Marshall writes: In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license.
63. Chief Justice Marshall writes: FN 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.
64. SJC Justice Sosman writes the following in her dissenting opinion in Goodridge. (Emphasis added with bold type)
65. SJC Justice Sosman writes: Although ostensibly applying the rational basis test to the civil marriage statutes, it is abundantly apparent that the court is in fact applying some undefined stricter standard to assess the constitutionality of the marriage statutes’ exclusion of same-sex couples. While avoiding any express conclusion as to any of the proffered routes by which that exclusion would be subjected to a test of strict scrutiny—infringement of a fundamental right, discrimination based on gender, or discrimination against gays and lesbians as a suspect classification — the opinion repeatedly alludes to those concepts in a prolonged and eloquent prelude before articulating its view that the exclusion lacks even a rational basis.
Continue reading: Rational Basis Challenge