NYT Op Ed on New Challenge to Prop 8

[_Daniel2]

No. Religion is not. Things like race, gender, age, and so on - these are immutable traits on which can be used as the basis for a suspect class.

From www.answers.com:

The Supreme Court has determined certain classifications to be constitutionally suspect. Discrimination based on any characteristic that the Court has declared suspect is presumed to be irrational and constitutionally invalid. When such discrimination is constitutionally challenged, the courts proceed with strict scrutiny and the government carries a difficult burden of proof to justify the legitimacy of its actions. The Supreme Court, for example, has declared race and religion suspect. Therefore, government discrimination against racial minorities or religious groups is unlikely to be upheld. The Court has occasionally conferred suspect class status on other characteristics, such as poverty and illegitimacy, especially when the discrimination has impinged on the exercise of fundamental rights (see Indigency; Inheritance and Illegitimacy). Women's groups have long fought to have gender elevated to a suspect class, but the Supreme Court has yet to endorse that position.

Interesting that "gender" has NOT yet been granted the classification as "suspect," and yet "religion" has. Your claim that "suspect=immutable" looks like it's incorrect, Ben.

Darin

[_rcrocket]

No. Religion is not. Things like race, gender, age, and so on - these are immutable traits on which can be used as the basis for a suspect class.

Yer wrong. Religion is a suspect class.

By contrast, sexual preference is not a suspect class. There are exceptions. California's Supreme Court in the In Re Marriage case held that sexual preference is a suspect class for purposes of the California constitution. (California has wording in its constitution which is different than the Bill of Rights.) Then, when the Prop 8 decision came down, the Supreme Court held that notwithstanding the suspect classification (requiring heigtened scrutiny) Prop 8 was constitututional.

The challenge is now underway in a federal district court against Prop 8, with the argument being that Prop 8 discriminates on a suspect classification against gays who want to marry. The trial court denied a motion to enjoin Prop 8 under federal constitutional principles; a trial on the issue is pending.

[_rcrocket]

Interesting that "gender" has NOT yet been granted the classification as "suspect," and yet "religion" has.

Yer wrong there too. Gender is a suspect class. You cannot discriminate, except on a heightened standard basis, against a person because of his or her gender.

[_Rollo Tomasi]

No. Religion is not. Things like race, gender, age, and so on - these are immutable traits on which can be used as the basis for a suspect class.

Religion surely has been treated as a "suspect class." And no one can argue that one's religion (at least in the USA) is a matter of choice, rather than "immutable."

[_Rollo Tomasi]

By contrast, sexual preference is not a suspect class.

Yet.

[_Benjamin McGuire]

Clearly, I misspoke on the religion issue. Religion is obviously held to be a suspect class under certain circumstances despite the fact that it doesn't meet all of the normal criteria applied to a suspect class.

In this case, it may well be that at some point the courts decide that sexual preference can be used to define a suspect class. However, at this point in time, the courts have not decided to do this. And as I suggested, it certainly warrants a great deal of caution to do this.

And of course, my original point still stands - that the article provided was clearly inaccurate in its description of the court's approach to the alleged right to marry.

[_Daniel2]

Interesting that "gender" has NOT yet been granted the classification as "suspect," and yet "religion" has.

Yer wrong there too. Gender is a suspect class. You cannot discriminate, except on a heightened standard basis, against a person because of his or her gender.

Hi, Rocket,

The comment I made was based on the linked paragraph on http://www.answers.com

http://www.answers.com/topic/suspect-classification

I find it odd that gender wouldn't be considered a "suspect" class, and am glad if/that the paragraph I quoted was not up-to-date (it doesn't say when it was written). It makes much more sense that gender would be suspect. Just to clarify the issue, given the erroneous information on answers.com, could you share a link showing that gender has been successfully added to the "suspect" list?

Thanks!
Darin

[_Who Knows]

The problem of course is that same gender attraction hasn't been defined as a suspect class - largely on the basis that it it doesn't seem to be defined as an immutable trait - ...

Can you substantiate that? I mean, the "immutable trait" test doesn't appear to be the major factor in determining whether something is a suspect class or not (see the religion example). In other words, it doesn't necessarily have to be immutable to be considered suspect. Thus, I'm curious to understand how you determined that same sex attraction hasn't been defined as a suspect class "largely" on the basis that it may not be an immutable trait.

The wiki lists the following 4 criteria:

1. a "discrete" or "insular" minority[1] who
2. possess an immutable trait (race or alienage),
3. share a history of discrimination, and
4. are powerless to protect themselves via the political process.

Obviously #2 is not necessary. So, it must be for one of the other 3 reasons - right? (at least 'largely' so).

[_Who Knows]

I find it odd that gender wouldn't be considered a "suspect" class

Perhaps because it fails test #1 (in my list above). Women aren't a 'minority'.

[_JohnStuartMill]

Look, if you conservatives want to make the gay marriage thing hinge on whether homosexuality is an immutable characteristic, go for it.