“Suspect class.”
Sounds like an insult, doesn’t it? You are a member of a suspect class. We’re taking your passport. Don’t leave the state without telling the police.
Except that’s not right at all. I researched the term because lawyers on our side of the Prop 8 trial kept asking about historical discrimination against gays. Does that matter to the verdict? Quite a bit, it turns out. Judges can choose from a number of standards when deciding whether a law is unconstitutional. Some standards are harder to meet than others, and no one can be sure which standard the judge – or the Supreme Court – will use when evaluating Prop 8. That’s the subtext of what’s going on now.
So let’s back up and look at “suspect class” again (disclosure: I’ll be plagiarizing Wikipedia in much of what follows). A “suspect class” is a group of people who:
- are a “discrete” or “insular” minority
- possess an immutable trait (except in the case of religion, for some reason)
- share a history of discrimination, and
- are powerless to protect themselves via the political process.
Race, national origin, and religion are suspect classes in US federal court. Age, disability, political preference, and sexual orientation are not.
When it comes to civil rights law, it’s great to be a suspect class. Because judges will use a stricter standard when scrutinizing laws that affect you. Basically, there are three standards for evaluating laws that discriminate against minorities.
- Strict scrutiny
- Intermediate scrutiny
- Rational basis scrutiny
When judges use rational basis scrutiny, they aren’t scrutinizing very hard. It’s easy for a law to stay in effect. Basically, under rational basis scrutiny, the supporters of a law only need to show that it’s a reasonable means of achieving a legitimate goal. It doesn’t matter whether the proponents were secretly motivated by bigotry and hatred; as long as the law is a reasonable means to a legitimate end, it’s okay.
But when the law discriminates against a suspect class, judges don’t use rational basis scrutiny. No, with suspect classes, they use strict scrutiny, and strict scrutiny is a much tougher standard.
- First, the law under consideration must be justified by a compelling governmental interest, something necessary or vital, as opposed to something merely preferred. Things like national security.
- Second, the law or policy must be narrowly tailored to achieving that goal. It has to operate like a scalpel rather than a machete.
- Finally, the law or policy must be the least restrictive means for achieving that interest. In other words, if there’s a different law that would be less discriminatory but still effective, then you’ve got to nix the current law.
For minorities, strict scrutiny rocks. Think about our opponents’ favorite argument: We have to keep marriage unchanged in order to provide a stable and healthy environment for raising kids. Stop screaming for a moment, and pretend that banning gay marriage would contribute to that (stop screaming!). Obviously, promoting a stable environment for children is a compelling government interest. But is banning gay marriage a narrowly tailored way of doing that, or is it a strange, bizarre, and indirect method, with very direct harm to gays and lesbians? And is it the least restrictive means of providing that environment, or could we find solutions that don’t quite so heavily penalize the LGBT community?
Unfortunately, sexual orientation is not a suspect class in federal court. Though maybe it should be. And maybe we can use this case to make that happen. Or maybe we can’t, and we have to get the courts to toss out Prop 8 based on rational basis scrutiny – which is tough to do, because then judges will simply be looking to see if banning gay marriage might possibly work in the way that bigots say it will.
And just to make things more complicated, you’ve also got intermediate scrutiny, which is a sort of in-between scrutiny: yeah, you can discriminate, but you better have a really good reason.
Basically, then, we can sum up the constitutional strategies of each side like this:
- The good guys: Gays qualify as a suspect class, and Prop 8 fails the strict scrutiny standard. And even if they aren’t a suspect class, Prop 8 isn’t a reasonable means of protecting marriage and kids – in fact, it actually harms them.
- The bad guys: No way are gays a suspect class! All we need is rational basis scrutiny, and we’ll show that unbigoted people have perfectly sensible reasons for denying basic human rights to those awful homosexuals.
So, hopefully, the following things will now make more sense:
- The attempts by our side to show that:
- Homosexuality is a state of being, and not just behavior.
- Being gay is not a choice.
- Gays have a history of discrimination.
- Prop 8 is being pushed by — and was voted in by — people who think gays are yucky.
- Gays can’t win their rights at the ballot box.
- Gays suffer from the ban on marriage, and so do their kids.
- The attempts by the other side to show that
- The whole idea of being a homosexual – as opposed to someone who occasionally dabbles in homosexual acts – is a new concept, and not even a universal one.
- Being gay is a choice.
- Gays never really had it so bad, and if they did once, they don’t anymore. I mean, look at the popularity of Brokeback and Will & Grace.
- Gays have tons of political power. Nancy Pelosi can’t get enough of ‘em. And look at all those anti-discrimination laws.
- Gay marriage will trash the whole institution and hurt children.
In real life, I’m an educator, not a lawyer. This is just my attempt to get the basics clear – not the nuances – so that people like me can better understand the Prop 8 proceedings. If you’re an expert and have a correction to make, please chime in.
Great piece, but I do have one quibble over an example you use relating to the Prop 8 supporters’ argumaent that “We have to keep marriage unchanged in order to provide a stable and healthy environment for raising kids.”
This doesn’t actually show a flaw in your thinking, but in theirs: a stable and healthy environment for raising kids is, bot sides agree, one where both parents are married. Therefore the logical thing to do to improve that is anything which reduces the chances of couples getting divorced – and if that’s your goal, gay marriage can work in its favour. Gay men and women in straight marriages are likely to divorce irrespective of whether or not there’s the prospect of a gay marriage afterwards. In many cases children are involved – gay men in particular are likely to have a straight marriage if having kids is important to them.
A good way of preventing this kind of situation occurring is to prevent these loveless straight marriages from happening in the first place. Legalising gay marriage and adoption by gay couples is one of the least complex ways of doing this, and has the added bonus of making hundreds of thousands of adoptive parents available.
The option proposed by the Prop 8 supporters is to try to force people to comply with their particular form of morality, something which has already had disastrous consequences elsewhere. Uganda was once considered a leader in combating the AIDS pandemic in Africa, however the government was forced to scrap its highly successful ABC campaign (Abstinence, Be faithful, use a Condom) by American religious groups who had the ear of the President Bush and wanted a ban on the promotion of the use of condoms. As a result much of the progress made has been lost. In their arrogance, the Religious Right decided to impose their religious morals on the Ugandans without any regard for the local culture. They expected Ugandans to quite suddenly, overnight, transform their culture to comply with the Religious Right’s dogma; it didn’t happen, and thousands are expected to die as a result.
The Prop 8 supporters want the same thing in America – their goal is to force the transformation of the nation’s culture to comply with their religious beliefs, irrespective of the consequences. We’ve already seen in Uganda that basic human rights are irrelevant to the Religious Right; the same is true in the US: the Religious Right has a long track-record of using the First Amendment to bash other people while at the same time acting as if the necessary restrictions it puts in place do not apply to them.
Also, all the available data indicates that gay divorce rates are very close to those of straights, with the CP dissolution rate for gay male British couples lower than the UK divorce rate. Despite our opponents’ claims that gay couples (and gay male couples in particular) aren’t stable relationships, allowing gay couples to marry would not result in an increase in the divorce rate. So IMO the question the Court must deal with on the divorce issue is which approach is the best one: to go down a route which will only succeed if people comply with someone else’s religious dogma, or a route where individuals are afforded the flexibility and respect to follow their own beliefs. It seems to me that the choice isn’t really much of a choice at all – if the Court chooses to side with the Prop 8 crowd they’ll be allowing a “law respecting an establishment of religion”, and that is not something America can afford to let happen.
[Webmaster's note: I agree completely. I'm just accepting the other side's statement for the sake of argument, in order to illustrate the difference of evaluating it based on rational basis scrutiny vs. strict scrutiny. Personally, I think it fails it either way. Hopefully the judge will, too.]
From what I have read you have hit the nail on the head regarding “suspect classes.” I cannot help but wonder if perhaps an answer to this might simply be put down to a religious question. Example: If I were a member of a religion that will sanctify same-sex marriage, then surely that would qualify me as being a part of a “suspect class.”
In other words, if Unitarians have the right to marry (as indeed they and all religions do), then on that basis, how can I be prevented from marrying under the law? Perhaps the “right” sort of lawsuit is one that defends my rights as a CHRISTIAN, not simply as a gay male. I wonder if a lawyer could make a good argument using this.
In your article you point out that religion is a mutable characteristic, but it is still considered a suspect class but you don’t know why. It’s because it is enshrined in our Constitution, Amendment 1. Freedom of Religion that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
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