9th Circuit to consider if gay is a suspect class

Discussion in 'Too Hot for Swamp Gas' started by g8rjd, Aug 12, 2013.

  1. g8rjd
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    g8rjd Well-Known Member

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    Underlying the DOMA case in the Supreme Court. but largely unaddressed (as it did not need to be), was the question of whether gay people are a discrete and insular minority, or suspect class, that are entitled to addtional constitutional protections from discrimination. That question is now squarely in front of the Ninth Circuit based on the exclusion of a juror for being gay in a civil case. I thought some of you may be interested in the article about the case, which will be argued next month (with Rheinhart, one of the most liberal judges on the 9th Circuit, which is saying a LOT, on the panel).

    Enjoy...

    http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202614810903&slreturn=20130712105830
  2. MichiGator2002
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    MichiGator2002 VIP Member

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    Spoilers -- they aren't.

    Although it doesn't surprise me that it's the 9th Circuit Court of Reversals trying to obliterate any useful meaning to that entire 14th Amendment scheme by turning the poster child for rational basis into a strict scrutiny class. They are tired of having to fudge out their silly "rational basis plus" opinions, I guess.
  3. GatorBen
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    GatorBen Well-Known Member

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    As I've said before, I think if you look at the hallmarks the Court has set forth as testing for a suspect class, they probably are, but the Court has used dodges trying to avoid ever having to rule on whether they are or not. A Batson challenge presents the case in a manner that makes it a little tougher to play that dodge game.
  4. OaktownGator
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    OaktownGator Well-Known Member

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    What legally makes a "suspect class" and what are the arguments (pro and con) as to whether homosexuals fit that definition?
  5. GatorBen
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    GatorBen Well-Known Member

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    A number of factors come into play (and the Court has been a bit squishy as to how many of them are actually required to be satisfied, although these are the ones which would tend to indicate that a classification is suspect):

    Historically has been discriminated against or have been subject to prejudice, stigma or hostility; "discrete and insular" minority that lacks the ability to protect themselves through ordinary political means; classified on an "immutable" or highy visible trait; treated differently based on stereotypes that are not actually indicative of abilities (or, in other words, are capable of contributing fully to society if legislative disability were not imposed).

    I don't think there is any question that homosexuals have, at least at some point, clearly satisfied every one of them except for arguably immutability (and all evidence seems to point to that one being satisfied as well, but in a hat tip to the loons we'll pretend for the sake of argument that you could just choose to stop being gay).

    Best arguments against being a suspect class? Pretending that sexuality is mutable based on the inability to identify a single gene genetic cause or, somewhat ironically, that they are increasingly gaining the ability to protect themselves through the ordinary political process as society becomes more tolerant.
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  6. OaktownGator
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    Thanks Ben - good explanation.
  7. MichiGator2002
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    MichiGator2002 VIP Member

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    Hard to dismiss as "loony" people taking exception to the idea that you can deem "immutable" a characteristic that is identified as describing an individual solely by observable behavior. Whether it's a conscious or volitional choice or not is almost moot. I mean, every sexual kink -- choice or not being irrelevant -- could probably hit all the points as well, doesn't make them suspect or even quasi-suspect*.

    And, whether you find it ironic or not, the ability to protect themselves through the political process is something that can be demonstrated; now that gay marriage for instance has been legalized by an actual statute (the political process) and not judicial fiat.

    *Speaking of which, the other implication of the entire classification scheme is that the scheme, and the corresponding standards, are based on a notion that there are contextually acceptable reasons to distinguish class from class, i.e. valid reasons that a law might draw that distinction and the purpose for doing so. I personally don't put "gay" ahead of "woman", for instance, as something that it is just beyond the pale to discriminate against -- but a suspect classification would basically say that, yes, it is categorically less reasonable to discriminate against "gay" than against "woman". The suspect classes are the things that are the least reasonable bases for discrimination in society.
  8. asuragator
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    Not hard to dismiss the loonies--they and their entire charade of reasons were exposed by Olsen and Boies as having a complete lack any substance.

    The homophobes and anti-gay folks have been using the notion that it is a choice has brought harm to homosexuals. It' not moot.
  9. OaktownGator
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    Attraction is not something you choose. Brain patterns aren't something you choose. There definitely are distinguishable attributes aside from behavior.

    I think a good case can be made that gays are protecting themselves successfully via the political process. Gay marriage is a huge societal change that speaks directly to that.
  10. DeanMeadGator
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    The ultra-liberal Ninth Circuit will no doubt educate us.
  11. demosthenes
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    demosthenes Well-Known Member

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    The same could be said for race with the advent of the civil rights movement.

    That being said, homosexuals as a whole appear to be well represented in the highest echelons of society and surging societal acceptance. It will be interesting to see how the Ninth Circuit rules and their reasoning behind their ruling.
  12. g8rjd
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    g8rjd Well-Known Member

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    Ben's legal analysis, as usual, is correct. In most of the DOMA cases addressing this issue, BLAG and other people against finding DOMA unconstitutional largely conceeded everything but immutability. That was where the battle lines were drawn on the suspect class.
  13. g8rjd
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    See my OP above ;)

  14. MichiGator2002
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    The notion that they are politically helpless is lazy analysis, though, at this point, and manifestly untrue, seeing as they've now scored statewide political (not judicial) victories on probably the most central political issue of interest to their class. So immutability is a stretch at all times, and they've actually overcome any deficit in being able to affect political change for their benefit without having been a suspect class.

    Homosexuality is a rational basis classification, and, frankly, if there needs to be a change, it's to crack down on this "rational basis plus" crap that is basically trying to give heightened scrutiny to a classification for which it simply is not justified, certainly not when measured side by side with the actual suspect and quasi-suspect classifications.
  15. demosthenes
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    demosthenes Well-Known Member

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    I've always thought quasi and rational plus scrutiny were just cute means to an end. My disclaimer is that while I did very well in my con law classes I have no love for the area of law. I think it takes a special person (read masochistic) to truly enjoy this field of law.
  16. g8rjd
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    g8rjd Well-Known Member

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    *Takes bow*
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  17. Gatorrick22
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    So, all men and women are not created equal... and treated equally under the law. How the phu@k is that Constitutional? Special treatment for special people? That's horse$h!t.
  18. GatorNorth
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    No,it's just the opposite actually. The strict scrutiny requirement provides a layer of protection for people who have been historically discriminated against, possess an immutable characteristic and are powerless to protect themselves so that people in a suspect class receive equal protection..

    I'm not saying being gay should or shouldn't trigger this standard of review, just that the requirement itself better allows all men and women to be treated equally.
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  19. Gatorrick22
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    BS! This is unneeded in today's world of huge numbers of immigrants. That's an old view that needs to be revisited... especially in this twenty first century world we live in today.
  20. MichiGator2002
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    MichiGator2002 VIP Member

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    I don't think the matrix is necessarily dated, because the classifications are (currently) pretty legitimate -- things you could look at throughout human history, not just American history, as being the most recurrent bases for unjust discrimination.

    The suspect classifications are -- race, religion, national origin, and alienage (non-citizenship -- and it's important that this pertains to lawful resident aliens. Illegal immigrants are not a suspect classification).

    The "quasi-suspect" classifications are -- sex, and bastardy. There is also a very narrow application in which states should treat illegal immigrants as quasi-suspect, and that's children in the education system.

    Everything else is non-suspect. As it should be. The courts have not proven to be in the business of adding to these lists, and, logically, it should be pretty hard to do so by virtue of the criteria used to define them. Homosexuality has been the proverbial mess thrown against the wall in a couple different contexts, but it hasn't ever stuck, and shouldn't stick.

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