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| | In Carolene Products, Justice Stone suggested that “statutes directed at particular religious, national, or racial minorities” and “prejudice against discrete and insular minorities” could warrant “more searching judicial inquiry.” |
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< | The Court has since provided various attempts at elaboration. Suspect classes face a “history of purposeful unequal treatment” based on “an immutable characteristic determined solely by the accident of birth” and is “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.” They may also be “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”
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> | The Court has since provided various attempts at elaboration. Suspect classes face a “history of purposeful unequal treatment” based on “an immutable characteristic determined solely by the accident of birth” and which is “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.” They may also be “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” |
| | Which classes are/aren’t suspect |
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< | The Court has been unwilling to expand the realm of suspect classification beyond those initially suggested three-quarters of a century ago (race, national origin, and religion). Two of the classifications find strong Constitutional support for suspect status. In the context of the 14th Amendment, race-based distinctions are obviously inherently suspect in equal protection jurisprudence. Suspicion towards religious classifications has a solid foundation in the 1st Amendment (and thus the 14th Amendment). National origin may have a weaker Constitutional basis for special protection, but likely reflects contemporary tensions resulting from the wave of immigration in the decades preceding Carolene Products. |
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> | The Court has been unwilling to expand the realm of suspect classification beyond those initially suggested three-quarters of a century ago (race, national origin, and religion). Two of the classifications find strong Constitutional support for suspect status. Considering the historical context of the 14th Amendment, race-based distinctions are obviously inherently suspect in equal protection jurisprudence. Discomfort with religious classifications has a foundation in the 1st Amendment (and thus the 14th Amendment). National origin may have a weaker Constitutional basis for special protection, but likely reflects contemporary tensions resulting from the wave of immigration in the decades preceding Carolene Products. |
| | Later cases have labeled sex, parental marital status, and parental legal immigration status as quasi-suspect classifications subject to intermediate scrutiny.
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| | What the Court has said |
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< | The only majority opinion to consider sexual orientation in an equal protection framework is Romer v. Evans. The Court applied rationality review, implicitly refusing to recognize orientation as a suspect classification. |
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> | The only majority Supreme Court opinion to consider sexual orientation within an equal protection framework is Romer v. Evans. The Court applied rationality review, implicitly refusing to recognize orientation as a suspect classification. |
| | Could sexual orientation be a suspect classification? |
| | Could sexual orientation be rendered a suspect classification by the challenged action? |
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< | “[P]rejudice against discrete and insular minorities” may hinder “political processes ordinarily…relied upon to protect minorities.” Even if sexual orientation isn’t a suspect classification in a theoretical vacuum, state action that places a badge of inferiority on homosexuality arguably creates a suspect class.
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> | “[P]rejudice against discrete and insular minorities” may hinder “political processes ordinarily…relied upon to protect minorities.” Even if sexual orientation isn’t a suspect classification in a theoretical vacuum, state action that places a badge of inferiority on homosexuality arguably creates a suspect class.
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< | Could sexual orientation be a quasi-suspect classification, based on the standards outlined above? |
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> | Could sexual orientation at least be a quasi-suspect classification, based on the standards outlined above? |
| | 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. 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. |
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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 the realm of legitimate 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 current 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 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.
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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,” while 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 authorize same-sex marriage. This suggests a minority that is more discrete and insular than politically powerful. |
| | An immutable characteristic determined solely by the accident of birth |
| | Is the Court being honest? |
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< | The Romer majority claimed to use rationality review, but rejected three state justifications for Amendment 2. I’m happy with the decision, but it doesn’t follow the extremely deferential floor set in other cases: rationality review doesn’t delve into the “wisdom, fairness, or logic” of proposed rationales, nor even require that the state “actually articulate at any time the purpose or rationale supporting its classification.” It’s hard to determine the difference between Romer’s rational basis “with bite” and intermediate scrutiny; would any justices change their decision in any case based on the other standard being applied?
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> | The Romer majority claimed to use rationality review, but rejected three state justifications for Amendment 2. I’m happy with the decision, but it doesn’t follow the extremely deferential floor set in other cases (namely, economic ones): rationality review doesn’t delve into the “wisdom, fairness, or logic” of proposed rationales, nor even require that the state “actually articulate at any time the purpose or rationale supporting its classification.” It’s hard to determine the difference between Romer’s rational basis “with bite” and intermediate scrutiny; would any justices change their decision in any case based on the other standard being applied? |
| | What is a rational basis for discrimination? |
| | 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.
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< | 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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> | I don't agree with any justification I've seen for denying sexual orientation quasi-suspect status. At the same time, I think any honest application of rationality review would strike down government discrimination based on orientation. |