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| | A history of purposeful unequal treatment |
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< | The Rodriguez majority, including Justice Rehnquist, called this a “traditional indicia of suspectness.” This is curious because the opinions Rehnquist joined in Bowers, Romer, and Lawrence all cited longstanding discrimination against homosexuals as clear evidence that such treatment was within state power. I agree with early Rehnquist; a history of discrimination merits closer scrutiny to determine if the State is acting out of entrenched bias or legitimate concerns. |
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> | The Rodriguez majority, including Justice Rehnquist, called this a “traditional indicia of suspectness.” This is curious because the opinions Rehnquist joined in Bowers, Romer, and Lawrence all cited longstanding discrimination against homosexuals as clear evidence that such treatment was within state power. The characterization of a class as deviant colors this analysis: a history of discrimination against deviant groups is expected, while such a history regarding acceptable groups merits stricter scrutiny to determine whether state action is based on legitimate concerns or entrenched bias. |
| | Political powerlessness [requiring] protection from the majoritarian political process |
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< | Justice Brennan has argued that the “severe opprobrium often manifested against homosexuals once so identified publicly” rendered the group “particularly powerless to pursue their rights openly in the political arena.” Justice Scalia in Romer called homosexuals a “politically powerful minority.” If homosexuality is considered deviant, then perhaps any move towards greater protection suggests political power. I disagree. Romer was decided in May 1996, three weeks after DOMA was introduced in the House. Homosexual sex was only decriminalized nationwide in 2003, and not through the political process. Today, only six states allow same-sex marriages. This suggests a minority that is more discrete and insular than politically powerful.
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> | Justice Brennan has argued that the “severe opprobrium often manifested against homosexuals once so identified publicly” rendered the group “particularly powerless to pursue their rights openly in the political arena.” Justice Scalia in Romer called homosexuals a “politically powerful minority.” If non-heterosexuality is considered deviant, then perhaps any move towards greater protection suggests political power. I disagree. Romer was decided in May 1996, three weeks after DOMA was introduced in the House. Homosexual sex was only decriminalized nationwide in 2003, and not through the political process. Today, only six states allow same-sex marriages. This suggests a minority that is more discrete and insular than politically powerful. |
| | An immutable characteristic determined solely by the accident of birth |
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< | The rule may or may not apply to sexual orientation, but it’s problematic regardless. The Court’s reasoning that “legal burdens should bear some relationship to individual responsibility” subtly endorses discrimination. If a group is truly equal, then questions of fault are misplaced.
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> | The rule may or may not apply to sexual orientation, but it’s problematic regardless. The Court’s reasoning that “legal burdens should bear some relationship to individual responsibility” subtly endorses discrimination. If a group is truly equal, then questions of responsibility are misplaced. |
| | Does the purported level of scrutiny even matter? |
| | So seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. |
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< | This is another standard used to define a suspect class, but I put it here because it’s the heart of the issue. When is sexual orientation relevant to a legitimate state interest? The only practical difference between heterosexuals and others relates to procreation and carries significant caveats. While it's possible that circumstances beyond my imagination may justify state discrimination, the difference in situation seems to implicate few, if any, legitimate state interests. State power shouldn’t be wielded at the moral whim of the majority to discriminate against disapproved groups.
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> | This is another standard used to define a suspect class, but I put it here because it’s the heart of the issue. When is sexual orientation relevant to a legitimate state interest? The only practical difference between heterosexuals and others relates to procreation and carries significant caveats. While circumstances beyond my imagination may justify state discrimination, the difference in situation seems to implicate few, if any, legitimate state interests. State power shouldn’t be wielded at the "moral" whim of the majority to discriminate against disapproved groups. |
| | I see no principled reason to deny sexual orientation quasi-suspect status, but I'm unsure how important the distinction is. I find it hard to imagine any standard but the most toothless rationality review that would uphold government discrimination based on orientation.
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