Suspect Classes

Introduction

In light of Perry v. Brown and the handful of DOMA challenges pending in various stages of court, it’s pertinent to consider the level of scrutiny applied to government discrimination on the basis of sexual orientation. Courts will also consider whether various framings of a "right to marry" are "fundamental", but that’s not my focus.

Defining Suspect Classes

The characteristics of suspect classes

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.”

The Court has since provided various attempts at elaboration. Suspect classes face a “history of purposeful unequal treatment”(1) based on “an immutable characteristic determined solely by the accident of birth”(2) 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.”(3) They may also be “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”(4)

Which classes are/aren’t suspect

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(5), parental marital status(6), and parental legal immigration status(7) as quasi-suspect classifications subject to intermediate scrutiny.

Some classifications found not suspect include age(8), physical(9) and mental(10) disability, and poverty(11).

The classification of sexual orientation, actual and potential:

What the Court has said

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?

Because of the Court’s longstanding refusal to expand the list of suspect classes, arguing that sexual orientation is a quasi-suspect class may be more productive. The uncertainty regarding what renders a class suspect versus quasi-suspect means most arguments in favor of one standard are largely applicable to the other.

Could sexual orientation be rendered a suspect classification by the challenged action?

“[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.(12)

Could sexual orientation at least be a quasi-suspect classification, based on the standards outlined above?

A history of purposeful unequal treatment

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

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,”(13) 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

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”(14) subtly endorses discrimination. If a group is truly equal, then questions of responsibility are misplaced.

Does the purported level of scrutiny even matter?

Is the Court being honest?

The Romer majority claimed to use rationality review, but rejected three state justifications for Amendment 2.(15) 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”(16) of proposed rationales, nor even require that the state “actually articulate at any time the purpose or rationale supporting its classification.”(17) 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?

So seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.

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.(18) 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 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.

Notes

1 , 4 , 11 : San Antonio v. Rodriguez

2 , 14 : Frontiero v. Richardson

3 , 10 : Cleburne v. Cleburne

5 : J.E.B. v. Alabama

6 : Clark v. Jeter

7 : Plyler v. Doe

8 : Massachusetts v. Murgia

9 : Alabama v. Garrett

12 : Carolene Products; see Amicus brief by Pam Karlan and Eben Moglen in Romer

13 : The dissent to a denial of petition for writ of certiorari, joined by Justice Marshall, also endorsed defining homosexuals as a suspect class.

15 : Preserving resources to combat more traditional discrimination, preserving freedom of association, and achieving statewide uniformity in civil rights laws.

16 : F.C.C. v. Beach Communications

17 : Nordlinger v. Hahn

18 : Not all heterosexuals can procreate, and not all that can do. Most non-heterosexuals could, if they chose to. Both can raise adopted children.