kllindley Posted March 13, 2017 Posted March 13, 2017 39 minutes ago, Daniel2 said: Regarding the gender of one's spouse (the common characteristic defining "sexual orientation" as a protected class which should not be discriminated against), the arguments proffered or argued all over the country before numerous state courts, appellate courts, state supreme courts, and the Supreme Court of the United States even as a rational basis ALL failed, in the vast majority of cases. Lawyers at both State and Federal levels could not offer any compelling arguments as to why the government should allow discrimination. With all of the above in mind, given your objection to holding sexual orientation as a protected class.... upon what basis do you believe it shouldn't be constitutionally-protected...? What has the government overlooked? From the source you provided, the Supreme Court declined to even weigh sexual orientation as a class: Quote Although the majority opinion did make reference to same-sex marriage bans implicating equal protection guarantees, its holding rested entirely on such bans infringing upon the fundamental right to marry in violation of both equal protection and due process guarantees. The Court did not mention whether classifications based on sexual orientation are suspect or quasi-suspect, and thus warrant any form of heightened scrutiny. If I understand correctly, this may still require the rational basis review. However, the only applicable arguments given in this case related to the government interest in limiting marriage to an opposite-sex partnership. These were deemed invalid. Further, the question here was whether same-sex marriage bans (government discrimination) were constitutional. The government has to prove that their action (law) is excusable under strict or rational scrutiny. The question of whether classifications based on sexual orientation should be held to the same scrutiny as other protected classes is not addressed. In the two cases here, Washington and New Mexico anti Discrimination laws already included sexual orientation as a protected class. That isn't up for debate. Under state law the actions of both the florist and the photographer were illegal and deserved a penalty. No such federal law exists. Many states don't include sexual orientation as a protected class. That is a decision that should be made by the people through their legislatures. The Washington case argued that strict scrutiny should apply because the fundamental right to free exercise or religion is violated in the case of anti-discrimination laws. The court found that this is acceptable because the laws were actions that furthered a compelling interest. They also found that the law was applied as narrowly as possible to still achieve that purpose. Thus the laws were deemed constitutional. I guess I don't see a compelling interest in identifying sexual orientation as a protected class. If sexual orientation should be considered a protected class, why not socio-economic status? Or Place of Residence? Or education level? Even if I grant the compelling interest, strict scrutiny would require that the law is tailored to be applied as narrowly as possible to achieve the compelling interest. If the compelling interest is making sure that individuals of all sexual orientations have access to all public services, I think the law could be reasonably narrowed to allow for referring to other alternatives where available. For instance in laws requiring that pharmacists dispense Plan B medications, some pharmacists have a religious objection to doing so. If a pharmacy around the corner will dispense Plan B, it shouldn't be illegal for the religious pharmacist to chose to lose the business and refer the individual to the second pharmacy. The compelling interest of ensuring that individuals have access to Plan B is still met. If there is not another pharmacy within say 10 miles, then I think it can be argued that the states compelling interest in ensuring that individuals have access to Plan B is justified in requiring even a religious pharmacist to dispense Plan B. In the same way, florists and photographers could be allowed to refer (within certain limitations such as price and distance). 40 minutes ago, Daniel2 said: There are plenty of other resources, but for the purposes of answering your question, it clear that "the gender of one's spouse," is "the common characteristic," here Would this mean that unmarried individuals don't have a sexual orientation to discriminate against? Aren't we then discriminating against asexual individuals if we require them to be married in order to get certain benefits? Using a characteristic of the another person as a common characteristic seems like shaky ground. Would "gender of one's children" be equally applicable as a protected class?
Daniel2 Posted March 22, 2017 Author Posted March 22, 2017 On 3/13/2017 at 2:00 PM, kllindley said: From the source you provided, the Supreme Court declined to even weigh sexual orientation as a class: If I understand correctly, this may still require the rational basis review. However, the only applicable arguments given in this case related to the government interest in limiting marriage to an opposite-sex partnership. These were deemed invalid. Further, the question here was whether same-sex marriage bans (government discrimination) were constitutional. The government has to prove that their action (law) is excusable under strict or rational scrutiny. The question of whether classifications based on sexual orientation should be held to the same scrutiny as other protected classes is not addressed. In the two cases here, Washington and New Mexico anti Discrimination laws already included sexual orientation as a protected class. That isn't up for debate. Under state law the actions of both the florist and the photographer were illegal and deserved a penalty. No such federal law exists. Many states don't include sexual orientation as a protected class. Hi, Klindley, Yes, as the source I quoted states, SCOTUS has not yet indicated what level of scrutiny "sexual orientation" will require in consideration of it being a protected class. As I mentioned previously, there's a diversity of opinion in the Appellate Courts as to the level of scrutiny that sexual orientation may require. In Obergefell, it's understandable that the court declined to yet issue any such ruling, because the court itself limited the scope of it's inquiry into the issue to two questions: This Court granted review, limited to two questions. 574 U. S. ___ (2015). The first, presented by the cases from Michigan and Kentucky, is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. The second, presented by the cases from Ohio, Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right. The specific questions we've been discussing, namely, "Should sexual orientation be treated as a protected class? If so, at what level?," were not before the court, and the court isn't in the habit of answering questions that aren't before it. That is as it should be, because before issuing such a far-reaching ruling, the court asks all parties (plaintiffs, defendants, and amici briefs) to submit all the relevant facts, facets, considerations, and ramifications so it can make a fully informed ruling. It goes without saying that the fact that SCOTUS declined yet (a.k.a. thus far) to issue a ruling about the level of scrutiny given to sexual orientation is not the same thing as SCOTUS issuing a ruling that sexual orientation is not or should not be considered as a protected class. Legal consensus I've read (and even within the current hearings for the proposed new Supreme Court Judge) indicate that the scope of the ramifications of Obergefell are yet undecided, and the court will still eventually have to address that question. In clarifying all of the above, I understand and acknowledge that it may well be that you and I are already on the same page on this particular, because I agree with you when you say, "The question of whether classifications based on sexual orientation should be held to the same scrutiny as other protected classes is not addressed." I just wanted to make sure the above was clear.
Daniel2 Posted March 22, 2017 Author Posted March 22, 2017 (edited) On 3/13/2017 at 2:00 PM, kllindley said: Many states don't include sexual orientation as a protected class. That is a decision that should be made by the people through their legislatures. Your first statement is accurate, but I disagree with your opinion expressed in your second sentence. State legislatures are bound by the constitution, and if SCOTUS ultimately rules that "sexual orientation" is a federally-recognized constitutionally protected class, they must likewise recognize it as such. I believe SCOTUS ultimately will address the issue and rely upon the growing body of legal precedent identifying sexual orientation as a protected class, based on the same principles that the lower courts are implementing (including the rulings in Washington and New Mexico, who's state constitutional principles are similar to the federal constitution and held that eliminating discrimination in the realm of public accommodations serves as a compelling government interest), just as they have in identifying and expanding the number of other currently-recognized protected classes, and for many of the same reasons. Quote I guess I don't see a compelling interest in identifying sexual orientation as a protected class. You may not see the compelling interest, but many courts have, and I agree with those that have, as well. If the constitution prohibits wedding industry businesses from discriminating against (through refusing goods and services) married couples based on the religion, race, ethnicity, or veteran status of said couples, upon what reason should refusal to serve couples based on the gender of the spouse be permitted? As I've said repeatedly, I can't see any reason NOT to treat sexual orientation the same as religious affiliation, race, and the other protected classes. And in the case of the wedding industry, a compelling case could be made that that is discrimination based on gender, as well (in fact, as I recall, lower courts did explored and upheld that interpretation, but SCOTUS was silent on those aspects in their ruling; their ruling in Obergefell ruled on the narrowest grounds needed to answer the two questions and didn't explore protected classifications further, which wasn't fully before the court). I found the following article helpful in understanding the legal precedent that ultimately paved the way for the legal recognition of same-sex marriage. While it doesn't address protected classes directly, it does address some of the legal rationale why same-sex couples have gained growing recognition: Quote [To understand how the civil right of marriage was ultimately recognized for same-sex couples,] we first have to understand the connection between the Constitution’s protection of that right and the legal doctrine that paved the way for it—the idea that the Constitution protects individual choice in matters of intimacy for gay and straight people alike… The right to make choices in intimate matters is based in Griswold v. Connecticut (1965), a case holding that married couples have the right to use contraception. This right was later broadened by the Court to include non-married couples. In Planned Parenthood v. Casey (1992) the Court extended the Constitution’s guarantee of autonomy in intimate matters to include abortion, arguing that abortion, like contraception, was a personal decision. As Justices O’Connor, Kennedy and Souter wrote in their opinion, “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” They argue that “these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In later decisions, the Court would use this idea of a privacy guarantee to defend gay rights. In its 2003 decision in Lawrence v. Texas, the Court invoked the liberty provision of the Due Process Clause to strike down a Texas law banning "homosexual conduct." The Due Process Clause of the Fourteenth Amendment provides that no state “shall . . . deprive any person of life, liberty, or property, without due process of law.” Texas had unconstitutionally deprived its gay citizens of their liberty by prohibiting them from having sexual relations. The opinion stressed that the Texas law conflicted with the right of all adults, gay or straight, to have personal choice in matters of consensual sexual relations. The Lawrence decision also helped lay the groundwork for the Court’s later holding in Obergefell that the right to marriage is fundamental and that same-sex couples cannot be excluded from it. As I see it, the government's interest of decreasing discrimination when they overriding business owners' religious-based objections to same-sex couples is justified and justifiable the same as the government's interest of decreasing discrimination when they overriding business owners' religious-based objections to any of the other protected classes. You seem to be approaching the issue mostly from "Why should sexual orientation be considered as a protected class?" I guess I'm approaching it just as much from the perspective of, "Why shouldn't sexual orientation be considered as a protected class?" Quote If sexual orientation should be considered a protected class, why not socio-economic status? Or Place of Residence? Or education level? For the same reasons that the other protected classes are considered worthy of protection, but the ones you listed aren't. Those don't seem to make sense to me. That would be like saying, "If veteran's status/gender/religious affiliation/[or any other protected class] should be considered a protected class, why not socio-economic status? Or Place of Residence? Or education level?" Edited March 22, 2017 by Daniel2
kllindley Posted March 22, 2017 Posted March 22, 2017 6 minutes ago, Daniel2 said: State legislatures are bound by the constitution, and if SCOTUS ultimately rules that "sexual orientation" is a federally-recognized constitutionally protected class, they must likewise recognize it as such. I agree with this statement. 8 minutes ago, Daniel2 said: You seem to be approaching the issue mostly from "Why should sexual orientation be considered as a protected class?" I guess I'm approaching it just as much from the perspective of, "Why shouldn't sexual orientation be considered as a protected class?" Yes, I am. Legally, the government has the burden of justifying why any class should be considered protected. Rather than operating from the default of any class I want is protected unless you prove me wrong. 10 minutes ago, Daniel2 said: For the same reasons that the other protected classes are considered worthy of protection, but the ones you listed aren't. I get where you are coming from, but this is still dodging the question. I believe that classes such as socio-economic status, place of residence, and educational level are the basis for much unjust discrimination. Therefore, the government has a compeling interest in preventing discrimination based on these factors. 1
Daniel2 Posted March 24, 2017 Author Posted March 24, 2017 (edited) On 3/22/2017 at 1:30 PM, kllindley said: Legally, the government has the burden of justifying why any class should be considered protected. Rather than operating from the default of any class I want is protected unless you prove me wrong. I get where you are coming from, but this is still dodging the question. I believe that classes such as socio-economic status, place of residence, and educational level are the basis for much unjust discrimination. Therefore, the government has a compeling interest in preventing discrimination based on these factors. It wasn't my intent to dodge the question. It just seems to me that you’re asking me to defend those other types of circumstances (socio-economic status, place of residence, and education level) that aren’t similarly situated to ‘sexual orientation,’ but even so, those other classifications are really beside my point. If the government ultimately decides to recognize ‘sexual orientation’ as a protected class, it’s not necessary to distinguish how it’s different from all those other circumstances you listed, because in all cases, each recognized class will be judged, and either approved or rejected, based on the merits of its own distinguishing traits, regardless of the other examples you raised (and for which there may be other rational reasons to deny their recognition for protection--but if you'd like to start another thread on those to argue the merits, please feel free to do so). I understand that the government has the burden to demonstrate why any class should be considered protected. The guidelines it has historically used certainly apply to minorities groups based on their sexual orientation (and which don't apply to the alternative categories you listed) are summarized here: Quote The US Supreme Court has mentioned a variety of criteria that, in some combination, may qualify a group as a suspect classification, but the Court has not declared that any particular set of criteria are either necessary or sufficient to qualify.[1] Some of the criteria that have been cited include: The group has historically been discriminated against or have been subject to prejudice, hostility, or stigma, perhaps due, at least in part, to stereotypes.[1] They possess an immutable[2] or highly visible trait. They are powerless[2] to protect themselves via the political process. (The group is a "discrete" and "insular" minority.[3]) The group's distinguishing characteristic does not inhibit it from contributing meaningfully to society.[4] With all of the above being said and on the flip side of the same coin, if the government decides to treat any minority group of people differently than how it treats the majority, it also has the burden of justifying such differential treatment due to Due Process and the Equal Protection Clause. As I'm not a constitutional lawyer, I've obviously had to continue to read and educate myself more fully on what legal experts are saying on the matter of sexual orientation. Although it’s a couple years old and was written in the months prior to the Obergefell ruling (in which, as we’ve both acknowledged previously, SCOTUS ultimately sidestepped ruling on the issue of ‘sexual orientation’ as a suspect class, since that question wasn’t before the court), I found this article particularly helpful and the most compelling as to justifying why sexual orientation should be a protected class. I've added emphasis (bolding, underlining, and in some cases, red text) to those portions I think are most relevant to our discussion: Quote What Level of Legal Scrutiny Should Sexual Orientation-Based Classifications Receive? The Stanford Political Journal Brett Palmer Jan 19, 2015 This term, the Supreme Court is highly likely to decide the constitutionality of same-sex marriage bans. Such bans still stand in the way of same-sex unions in 14 states, and have aroused passionate opposition. However, the fate of these laws might not rest on moral arguments for equality. Instead, their constitutionality may be determined by a relatively dry legal issue: the level of scrutiny that laws which differentiate on the basis of sexual orientation should receive under the 14th Amendment. What is legal scrutiny, and why does it matter? The Equal Protection Clause (EPC) of the 14th Amendment declares that “No State… shall deny to any person within its jurisdiction the equal protection of the laws.” This guarantee of equal protection is one of the most profound and important statements in the American Constitution. Groups frequently dispute laws on basis of the EPC, arguing that a particular statute which explicitly treats two groups differently is unconstitutional. The success or failure of such attempts, though, often rests on certain judicial rules regarding the implementation of the EPC. One set of these rules regards the level of judicial “scrutiny” laws receive when they are challenged as discriminatory on the basis of the EPC. “Scrutiny” here refers to how a particular law is approached by a Court. Courts can apply one of three different types of scrutiny to a law accused of violating equal protection: strict, intermediate, and rational-basis. A law that receives “strict scrutiny” is presumed to be unconstitutional unless it can meet certain strict conditions; a law that receives “intermediate scrutiny” is assumed to have serious questions about its constitutionality and must meet a slightly more flexible set of restrictions; and a law analyzed under “rational-basis” scrutiny is presumed constitutional, and must only meet very basic conditions. The level of scrutiny a law receives depends on the “classifications” a law has made, i.e, the groups into which the law has divided people. Classifications may include divisions by race (like Jim Crow laws in the segregated South), gender (like the statute specifying that only males must sign up for the Selective Service), or even age (see Social Security and Medicare). Courts presume some classifications, such as race, to be illegitimate. These classifications are called “suspect classifications” and trigger strict scrutiny. Others are thought to be generally problematic, like gender, and are titled “quasi-suspect” classifications. Quasi-suspect classifications receive intermediate scrutiny. Finally, there are groupings courts usually consider to be legitimate. These groupings can be among other things, age-based, criminal record-based, or class-based, and receive “rational basis” scrutiny. As previously mentioned, the level of scrutiny determines what conditions a law must meet to be constitutional. A law that receives strict scrutiny must comply with the following three restrictions: It must be justified by a compelling state interest. This means the law is needed to protect something essential to the health of the state. National security is generally considered a compelling state interest. It must be narrowly tailored. This means that the law must be carefully written so that it only employs the “suspect classification” when absolutely necessary to meet the compelling state interest. This condition becomes significant when considering affirmative action laws. Such laws are currently considered legal because they meet the compelling state interest of creating diversity on college campuses. However, they would be illegal if they created diversity by, for example, admitting a freshman class exclusively made up of African Americans. That remedy would not be considered to be a “narrowly tailored” means of achieving diversity. It must be the least restrictive means of meeting that state interest. This requires that there cannot exist a viable alternative method for achieving the state interest that does not employ the suspect classification. This, once again, is important when considering affirmative action: the Supreme Court has said affirmative action would be unconstitutional if there were some other way to achieve real diversity on college campuses without using it. For a statute to trigger intermediate scrutiny, it must meet these slightly less restrictive conditions: It must serve an important government interest. This means that the interest must be more than simply legitimate, such as an interest in increasing administrative efficiency. Pursuing the government interest must also have a significant impact of societal welfare. An example of an important government interest is traffic safety. It must be substantially related to that interest. The classification cannot just further the interest; it must be closely related to it. For instance, in Craig v. Boren, the Supreme Court found that a law which allowed sale of a certain kind of alcohol to women between 18–21 and not men of that age violated the 14th Amendment, because it was not substantially related to the stated government interest of traffic safety. Finally, a provision receiving “rational-basis scrutiny” need meet only these conditions: It must serve a legitimate state interest. This can be just about anything — controlling the mosquito population would probably be considered a legitimate state interest. It must be rationally related to that interest. All this rule requires is that the classification the provision makes has something to do with furthering the legitimate interest. Laws which receive Strict Scrutiny are rarely ruled constitutional, due to the difficulty in meeting the above restrictions. Those judged under Intermediate Scrutiny survive slightly more often, while those getting Rational-basis scrutiny are most likely to be upheld. Thus, one who seeks to strike down a law on the basis of the EPC is likely to prevail if the statute is subject to Strict Scrutiny. This is why the type of class a group is labeled as is so significant. Those trying to strike down same-sex marriage bans using the equal protection clause are therefore keenly interested in whether sexual-orientation is judged as a suspect class, a quasi-suspect class, or a non-suspect class. What Determines a Suspect Class? Determining whether a group constitutes a suspect class is an imprecise task. The criteria used by federal courts can shift, and some judges put more emphasis on some traits than others. Nonetheless, Justice John Paul Stevens did identify some hallmarks of a suspect class is his majority opinion in Lyng v. Castillo. Addressing the class of “close relatives,” he wrote, “Close relatives are not a ‘suspect’ or ‘quasisuspect’ class. As a historical matter, they have not been subjected to discrimination; they do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are not a minority or politically powerless.” This passage suggests that members of a suspect or quasi-suspect class will often have suffered discrimination, may be easily recognized by some characteristic, and frequently lack political power. Perhaps the most important factor in deciding whether a group is a suspect class, though, is whether there are legitimate reasons to treat that group differently. In the case of senior citizens, for instance, there are often real reasons to treat the group separately. Seniors need greater medical attention than other citizens, and they are often less able to maintain a job. However, there are few, if any, acceptable reasons to treat African-Americans differently from other Americans. Aside from affirmative action programs and possibly some reparations-related legislation, laws treating these people differently than others would generally be legally unacceptable. As such, race is considered to be a suspect classification, while age is not. Is Sexual Orientation a Suspect or Quasi-Suspect Class? There is currently no legal consensus as to whether sexual-orientation is a suspect classification, a quasi-suspect classification, or a non-suspect classification. The Supreme Court has not issued a definitive statement on the matter, and different courts have substituted varying judgements of their own. I believe, though, that sexual-orientation should be considered a suspect class, and that laws that differentiate on the basis of sexual orientation should be subject to strict scrutiny. Gays and lesbians clearly fulfill the first criterion put forth by Justice Stevens: they have suffered obvious and painful discrimination. The discrimination they’ve faced has been both de facto and de jure. The de facto variety includes numerous grisly hate crimes and deplorable employment injustices. However, the de facto discrimination doesn’t compare to the insidiousness of the de jure. While de facto prejudice reflects the narrow-mindedness of a hateful few, de jure discrimination carries the veneer of legitimacy conveyed by our political process. The harm wrought by bans on gays openly serving in the military, engaging in fulfilling sexual relationships, and claiming the benefits of formal recognition of their relationships has been all the more pernicious because of this democratic sanction. Whether gays and lesbians have some “obvious, immutable, or distinguishing characteristic,” to use Justice Stevens’ framing, is a more difficult question to evaluate. They certainly are not visually obvious in the way members of particular races are. One can easily know a person a long period of time without being aware of their sexual orientation. On the other hand, they do have a distinguishing characteristic if we interpret that word literally: they are sexually attracted to those who identify as their gender. Our inquiry thus becomes how to interpret the word “distinguishing.” According to Chief Judge Robert Katzmann of the U.S Court of Appeals for the Second Circuit, sound judicial reasoning takes the meaning of a word in a list to be limited by the meaning of the other words in the list. Here, the word “distinguishing” appears in a list with “obvious” and “immutable,” so we might be able to narrow the definition of “distinguishing” by the meaning of the other adjectives. The words “obvious” and “immutable” don’t necessarily refer to visible traits; they might mean characteristics that are an essential part of one’s life. We must therefore look at the larger context of the sentence to limit “distinguished.” Luckily, this approach does provide some help. Justice Stevens wrote that “Close relatives… do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group.” By adding the clause “that define them as a discrete group,” Stevens seems to indicate that what he is really concerned about is not that a suspect class have some visible characteristic, but that the group possess some trait that reasonably narrows its members from society as a whole. “Close relatives” when taken as a class could define nearly all of society, as most everyone is the close relative of someone. Moreover, aside from a categorizing title, close relatives have nothing meaningful in common. Since it seems to me that sexual orientation would define a discrete group, I would consider it to an “obvious, immutable, or distinguishing characteristic” for EPC purposes. Whether gays constitute a politically powerless minority is a similarly tricky question. The LGBTQ community certainly has energetic and effective advocates in the Human Rights Campaign, the National Gay and Lesbian Task force, and Lambda Legal, among other organizations. This would seem to suggest that gays and lesbians do have political influence. However, it is not clear that this power had developed by the time of the adoption of the same-sex marriage bans in question. Between 1998 and 2012, 31 constitutional amendments banning same-sex marriages passed at the state level; only two such amendments were defeated. The gay rights movement of that period had nowhere near the political potency it has today. Furthermore, as Darren Lenard Hutchinson wrote for the Alabama Law Review, regardless of the influence that the LGBTQ community has now, the fact remains that “to the extent that gays and lesbians have political power, they can only use this power to persuade courts and legislatures to recognize basic rights that others take for granted." Gays aren’t politically influential in the way oil tycoons and multinational corporations are; their struggle is not for special tax exemptions, but rather for simple human dignity. When even the wildest success of a political advocacy campaign would constitute only bare equality for the affected group, the group is still politically weak in the sense Justice Stevens meant. The suspect classness of sexual orientation is further reinforced when we consider whether there exists any legitimate societal reason to treat gays and lesbians differently than others. Opponents of gay rights often put forth society’s interest in procreation as a reason homosexual relationships should be discouraged. However, as both Justices Breyer and Kagan noted during the oral arguments in Perry v. Hollingsworth, if this were a legitimate interest of society, then society also would have rational reason to discriminate against infertile individuals and postmenopausal women. Since our government clearly cannot treat these groups differently for this reason, societies interest in procreation cannot be an acceptable reason to treat homosexuals adversely. The other reason for disparate treatment typically offered by anti-gay advocates is usually some claim about the immorality of homosexuality and the right of society to express ethical outrage. I find this sort of assertion as offensive as it is absurd, but this argument fails even if one were to (incorrectly) accept homosexuality as immoral. Society does not have absolute power to regulate morality; most believe a life of cheating on one’s non-marital partner to be unethical, but few would assert a government’s right to criminalize such behavior, or deny that individual fundamental rights. This is because spousal betrayal does not threaten societal order, or endanger the guaranteed rights of others. Similarly, being gay cannot destabilize society, or cause impermissible harm to others. As such, society cannot legitimately treat gay and lesbian individuals differently from others based on the conclusion that they are inherently immoral. Since sexual-orientation bears all of the hallmarks of a suspect class, I conclude that it is indeed a suspect class, and that legal classifications made on that basis should be subject to strict scrutiny. However, that does not mean that gay rights advocates should seek a suspect class classification. In light of the Supreme Court’s affirmative action jurisprudence, they might actually prefer a quasi-suspect class designation. What Class Designation Would Be Most Advantageous for the Cause of Gay Rights? When considering what class designation to pursue, gay-rights activists should consider the legal fate of race-based classifications. Such classifications have received strict scrutiny ever since Korematsu, but that scrutiny has not always been helpful for ethnic minorities. Strict Scrutiny, as employed in Loving and other race cases, led to the demise of segregation. More recently, however, the Supreme Court has used strict scrutiny as a pretext to strike down laws benefiting minorities, specifically certain types of affirmative action statutes. The Court has said that since race is presumed to be an impermissible class, strict scrutiny must be applied to any statute which classifies by race, even if the law is designed to promote greater equality. Furthermore, the Court held in Grutter (incorrectly, in my opinion) that remedying past discrimination is not a compelling state interest. These precedents suggest that if sexual orientation is held to be a suspect class, gays and lesbians could be precluded from receiving reparations for the wrongs they have borne. Any law enacted to compensate for their sufferings might be struck down for failing to provide equal protection to heterosexuals. This would clearly be an undesirable result for those seeking to promote equality. The Supreme Court has not held, though, that remedying past discrimination is not an important state interest. This means that an affirmative action law benefiting homosexuals might be upheld on that basis if subjected to intermediate scrutiny. The drawback of seeking intermediate, rather than strict scrutiny, is that it may be more difficult to see anti-gay laws struck down under the EPC. However, I think that intermediate scrutiny would be more than enough to take down modern discriminatory statutes. When it comes to banning same-sex marriage, I cannot see how the state could successfully claim to be protecting any legitimate interest, let alone an important one. Indeed, most federal courts have thus far held that same-sex marriage bans fail even when subjected to rational-basis scrutiny, and none has found that such bans could survive intermediate scrutiny. Given this, I think that sexual-orientation equality would be best served if its advocates sought a quasi-suspect class designation at the Supreme Court. Final Thoughts It is tragic that gay and lesbian individuals have so long labored under the yoke of discrimination. However, if there is one advantage to this oppression, it is that gay-rights activists can benefit from the collective wisdom of the rights movements that came before them. They can study the legal precedents regarding race and gender based discrimination, and employ only the most successful strategies. In doing so, I believe they will find that seeking intermediate scrutiny is the best path to achieving equality. While the highest court of the land has yet to decide what level of classification “sexual orientation” will receive, numerous lower and appellate courts have almost unanimously agreed that “sexual orientation” receives some level of scrutiny. I believe the article above does a good job of examining why that is as it should be, and more than answers your questions as to why classifications by ‘sexual orientation” should be protected. I hope the above helps, and welcome your feedback. Thanks, D Edited March 27, 2017 by Daniel2
Daniel2 Posted April 3, 2017 Author Posted April 3, 2017 (edited) Bumping this topic up with the hopes of continuing dialogue with you, Kllindley... Also, today the first post-Obergefell Federal Appeals Court is hearing arguments on the constitutionality of laws allowing religious exemptions: Quote A Lurking Threat to LGBT Rights & Religious Freedom Joshua Matz // 4/3/17 // In-Depth Analysis Today, the Fifth Circuit will hear argument in Barber v. Bryant, a challenge to Mississippi’s HB 1523. This is the first post-Obergefell case to reach a federal appellate court involving an anti-LGBT "religious freedom" law. It is a significant case in its own right and may have far-reaching implications: a leaked draft executive order from the Trump Administration is similar in key respects to HB 1523, as is legislation pending in both houses of Congress (the First Amendment Defense Act). Bryant is a case worth following. If the Fifth Circuit upholds HB 1523, it will imperil civil rights throughout the nation. Often, cases like this one are portrayed as LGBT rights v. religious freedom. Fair enough: in some circumstances, there truly is a clash of interests. But not here. Although it is decorated and defended with the rhetoric of accommodation, HB 1523 not only eviscerates LGBT rights, but also shreds core tenets of religious liberty. Drafted with the manifest purpose of privileging anti-gay religious beliefs above all other interests, and in a manner that sends a clear message of religious endorsement, HB 1523 functions as a sword against non-adherents rather than as a shield for the faithful. Ultimately, if states are free to so flagrantly establish preferred religious teachings—literally writing favored creedal statements into their legal codes and denying protection to non-adherents—then religious freedom is threatened everywhere. Accordingly, this is not a case where the Free Exercise Clause clashes with LGBT rights. Rather, it is case where the Free Exercise Clause and Establishment Clause, both of which command non-discrimination, would be vindicated by a decision enjoining HB 1523. As the Supreme Court has made clear, “The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause.” Lee v. Weisman, 505 U.S. 577, 587 (1992). And it is hard to imagine an Establishment Clause limit that HB 1523 does not violate. I am therefore proud to represent a group of church-state scholars as amici curiae in Bryant. As a lawyer, a citizen, and a religious minority, HB 1523 offends me. It is one thing to truly accommodate religious objectors; it is quite another to use the language of free exercise while disparaging adherents of disfavored religious beliefs. Background on HB 1523: A Most Unusual Law HB 1523 prohibits the State of Mississippi from taking “discriminatory action” against persons or organizations for conduct "based upon or in a manner consistent with" three "religious beliefs or moral convictions": (1) that “[m]arriage is or should be recognized as the union of one man and one woman;” (2) that “sexual relations are properly reserved to such a marriage;” or (3) that “male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.” Every term in HB 1523 is defined broadly. For instance, "person" includes for-profit corporations. And "discriminatory action" includes any "fine, fee, penalty or injunction;" any modification of tax status; any change in the availability of state funding; any action taken with respect to a license, custody award, or accreditation; and lots more. HB 1523 then specifies a wide range of settings where conduct "based upon or in a manner consistent" with the preferred religious beliefs is immunized. These include the "solemnization, formation, celebration or recognition of any marriage," housing, employment, adoption, foster care, fertility services, psychological services and counseling, and government employment. In short, HB 1523 touches virtually every setting and institution in Mississippi, from intimate healthcare decisions to public accommodation. A restaurant could refuse to let a same-sex couple celebrate their wedding anniversary (since that involves "recognition" of the marriage). A school counselor could refuse to treat a suicidal gay teenager. And so on, and so forth. HB 1523 further provides that state employees "may seek recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with" the preferred religious beliefs. While HB 1523 adds that "The Administrative Office of Courts shall take all necessary steps to ensure that the performance or solemnization of any legally valid marriage is not impeded or delayed as a result of any recusal," there is no enforcement mechanism or private right of action to ensure the availability of marriage licenses. Finally, HB 1523 has several breathtakingly odd provisions. For instance, it explicitly exempts itself from the State's Religious Freedom Restoration Act. Thus, if complying with HB 1523 imposes a substantial burden on any person's religious belief, the religious beliefs enumerated in HB 1523 automatically trump those other religious interests. The law quite literally sets the three preferred religious beliefs over every other conceivable religious tenet in Mississippi. To take another example, through a series of unusual definitional terms, HB 1523 authorizes those who discriminate in the name of the preferred religious beliefs to obtain an injunction—and monetary damages!—against any private party’s effort to obtain relief under the anti-discrimination laws. In short, HB 1523 is a most unusual law. Judge Carlton Reeves recognized this when he entered a preliminary injunction last year, concluding that HB 1523 likely violates the Establishment Clause and Equal Protection Clause. HB 1523 Poses A Clear and Present Danger to Religious Liberty The United States has a long tradition of religious accommodation. When laws impose burdens on the free exercise of religion, government often provides accommodations out of secular respect for liberty of conscience. There are, however, well-established limits on the accommodation of religion. Under the Establishment Clause, government may not structure accommodations in ways that have the purpose of promoting religious beliefs, that endorse or discriminate against religious beliefs, or that shift unreasonable hardship to other citizens. See Cutter v. Wilkinson, 544 U.S. 709, 713 (2005); McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 876 (2005). These limitations safeguard religious liberty for Americans of all faiths, denominations, and spiritual persuasions. In light of these principles, HB 1523 is unconstitutional for four interrelated reasons. First, it was enacted with the forbidden purpose of promoting particular religious creeds, as evidenced by the Governor’s own contradictory statements offered in defense of the law. Even as the Governor characterizes HB 1523 as a response to legal “assaults” on opponents of same-sex marriage, he emphatically denies in his brief that HB 1523 lifts any actual, existing burdens on persons of faith in Mississippi (and he says virtually nothing about the law's provisions regarding nonmarital sexual relations and gender identity). But when a State enacts legislation affording special treatment to three contested religious beliefs, and does so on the explicit premise that those beliefs face no actual burdens, it cannot be concluded that the law is based in genuine free exercise concerns. Rather, such legislation has the purpose of announcing State support for the selected religious beliefs. See Wallace v. Jaffree, 472 U.S. 38, 59 (1985). Second, HB 1523 endorses the preferred beliefs—and disparages those who do not share them. HB 1523 does not attempt evenhandedly to protect holders of all views on marriage, sexuality, and gender against burdensome regulation. Instead, it singles out specific religious viewpoints on these subjects and treats them as superior to all contrary beliefs. The law thus creates insiders and outsiders, whose rights vary significantly depending on whether they agree with Mississippi’s controversial creedal statements. Moreover, HB 1523 provides that the preferred beliefs always and automatically prevail over any other free exercise interest that may be affected, including interests based in different religious beliefs about the exact same subjects of marriage, sexuality, and gender. HB 1523 thus tells every citizen of Mississippi that adherents of the preferred beliefs rank above all others—and that non-adherents are unworthy of equal treatment. Third, HB 1523 violates bedrock principles forbidding discrimination on the basis of religious belief and denomination. See Larson v. Valente, 456 U.S. 228 (1982). Not only does it discriminate in favor of the preferred beliefs and against non-adherents, but it also places the State’s imprimatur on a set of religious beliefs embraced by some denominations, denied by others, and actively debated by many. Such governmental favoritism along religious lines is prohibited. Fourth, and finally, HB 1523 is invalid under Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985), and Cutter v. Wilkinson, 544 U.S. at 720, which forbid accommodations that shift unreasonable hardship to third parties. HB 1523 imposes serious harm on LGBT persons. Yet this unique law privileges the preferred beliefs over every conceivable third-party interest—even though it operates across countless societal contexts and will shift burdens to third parties in ways that infringe on fundamental rights. Given HB 1523’s uncompromising and categorical character, it is impossible that Mississippi adhered to Cutter’s directive to “take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” 544 U.S. at 720 (citing Thornton, 472 U.S. at 703). As the foregoing discussion makes clear, in enacting HB 1523, Mississippi has purposefully favored a set of religious beliefs about controversial questions of marriage, sexuality, and gender. The law itself, by virtue of its unprecedented structure, endorses the preferred beliefs, disparages and discriminates against those with different religious truths, and shifts substantial burdens to LGBT citizens and their families. HB 1523 thus declares to every citizen of Mississippi, and in particular to faith leaders and LGBT persons, that the preferred beliefs are exalted above all others in the eyes of the State. Upholding HB 1523 would pose a grave threat to religious freedom. Apart from HB 1523’s own harms, which are considerable, a decision allowing this kind of legislation would open the door to hundreds of laws just like it: statutes that identify specific propositions of religious belief, confer comprehensive protections only on persons who hold a particular viewpoint on those disputed religious issues, and require that every imaginable contrary interest automatically give way in the event of a conflict. Consider the following statements of belief, potentially enshrined in law and held automatically to trump any competing third-party interest (including other free exercise interests): The earth was created for all mankind, without regard to national borders. The sick are healed through prayer alone. The consumption of alcohol is vile and immoral. Possession of arms must be reserved exclusively to those defending a nation in a just war. Husbands must have dominion over wives and children. If this Fifth Circuit blesses HB 1523, it will invite many other religious groups—of all doctrinal and political persuasions—to use whatever clout they can muster to write their own core tenets into law, unleashing forces of religious conflict and suppression. For the sake of religious freedom, this law must be blocked. HB 1523 and the Trump Administration Since the Court held that the Constitution protects the right of same-sex couples to marry, and since the Obama Administration sought to safeguard the rights of LGBT people in many other contexts, questions have arisen about the proper nature and scope of accommodations for religious objectors. Within those discussions, and measured against other efforts to strike a balance, HB 1523 is a stark outlier. Not only is it ferociously anti-gay and anti-transgender, but it is also anti-religious liberty. Since President Trump took office, there has been widespread uncertainty about the state of LGBT rights. One of the most important unanswered questions is whether—and, if so, how—he will address the issue of religious accommodation. One possibility is that he will do so through an executive order (EO). Last week on Take Care, Chip Lupu and Bob Tuttle offered thoughts on a leaked draft EO addressing LGBT rights and free exercise. That EO is similar in some respects to HB 1523. And in those and other respects, it raises profound constitutional questions. Another possibility is that Congress will enact and President Trump will sign the First Amendment Defense Act. This law has attracted formidable political opposition and might well be unconstitutional. Notably, whereas an original version of FADA mirrored HB 1523 in protecting only a single viewpoint on same-sex marriage, a revised draft of the bill now protects from discrimination those holding different views on the subject. That hardly makes FADA anything other than awful, but this evolution likely reflects an awareness by FADA's sponsors that if their bill were to remain as discriminatory as HB 1523, it would be unconstitutional (and unjust). The fate of HB 1523 may thus offer a lesson in protecting LGBT rights and religious liberty—or, if the Fifth Circuit breaks from precedent and upholds the law, a scary sign of what lurks ahead. Edited April 3, 2017 by Daniel2 1
kllindley Posted April 3, 2017 Posted April 3, 2017 31 minutes ago, Daniel2 said: Bumping this topic up with the hopes of continuing dialogue with you, Kllindley... Also, today the first post-Obergefell Federal Appeals Court is hearing arguments on the constitutionality of laws allowing religious exemptions: Thanks, Daniel. I guess I'm confused about what dialogue you are hoping for. I have explained that I don't think that sexual orientation is immutable or defines a discreet segment. This ignores bisexuality and fluidity. In response, you posted an article which asserts that "Since it seems to me that sexual orientation would define a discrete group, I would consider it to an “obvious, immutable, or distinguishing characteristic” for EPC purposes." I really don't know what else to say.
Daniel2 Posted April 3, 2017 Author Posted April 3, 2017 (edited) 24 minutes ago, kllindley said: Thanks, Daniel. I guess I'm confused about what dialogue you are hoping for. I have explained that I don't think that sexual orientation is immutable or defines a discreet segment. This ignores bisexuality and fluidity. In response, you posted an article which asserts that "Since it seems to me that sexual orientation would define a discrete group, I would consider it to an “obvious, immutable, or distinguishing characteristic” for EPC purposes." I really don't know what else to say. It appears that your definition of a suspect class revolves solely/mostly around "immutability," which is defined as "not mutable; unchangeable; changeless." But that isn't the only adjective used to identify a class of people; it's one of at least three, namely, that such groups "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group." The word "or" indicates that not all three words are even mandatory to be legally classified as a protected class. The article doesn't just stop at the sentence you quoted; it goes on to explain why sexual orientation does qualify as a class of people who exhibit obvious and distinguishing characteristics in their own right. Additionally, "religious affiliation" also isn't immutable; Mormonism's missionary outreach efforts depend on people converting from one Faith to another; similar to how a bisexual individual may choose a relationship with either gender. Despite the changeability of religious affiliation, it is still a protected class, because even if it isn't "immutable," adherents of any given religion often exhibit obvious or distinguishing characteristics that define them as a discrete group, even if such traits aren't always immediately visible/observable (as contrasted by the case of race, for example). Given that religious affiliation is clearly not immutable and obviously is changeable, why do you accept it's inclusion as a protected class but insist that sexual orientation should be immutable if it is to be included as a protected class...? Edited April 3, 2017 by Daniel2 1
kllindley Posted April 3, 2017 Posted April 3, 2017 6 minutes ago, Daniel2 said: Given that religious affiliation is clearly not immutable and obviously is changeable, why do you accept it's inclusion as a protected class but insist that sexual orientation should be immutable if it is to be included as a protected class...? I've already explained that I don't. This feels like I'm going in circles. You can use other classes to argue your point, but if I bring up other classes I'm invited to start a new thread. What are you looking for from me?
Daniel2 Posted April 3, 2017 Author Posted April 3, 2017 (edited) 1 hour ago, kllindley said: I've already explained that I don't. This feels like I'm going in circles. You can use other classes to argue your point, but if I bring up other classes I'm invited to start a new thread. What are you looking for from me? Well.... I agree with you in one sense: you do seem to be going in circles. I've attempted to answer your questions about why sexual orientation qualifies as a protect class according to the legal parameters. You say you don't believe it is and made another reference to immutability. When I say that isn't a necessary factor, you agree and made additional references to other potential classes (presumably economic status and place of residence). Yet you never acknowledge (or rebut) that "sexual orientation" meets the qualifications to be considered a legally protected class. I was hoping that you could acknowledge that it does meet the qualifications on it's own merits, or rebut why it doesn't on it's own merits, instead of asking me to defend OTHER proposed protected classes. I'm not sure why you haven't done so, but agree that the circling is somewhat frustrating, apparently to both of us. I'm trying to find out where YOUR line is... but I'm having difficulty following and understanding exactly on what grounds you feel that sexual orientation doesn't and shouldn't qualify. What I'd like from you is consistency to understand your position. To summarize things from my perspective: I'm comparing a new proposed class (sexual orientation) to the merits of other classes that have already been recognized on their merits, based on the similar merits of this new proposed class that many courts have already likewise proposed be considered as such. I've suggested that the merits of the class I (and other courts) have proposed are similarly situated to those classes that have already been recognized. I've also said that to recognize "sexual orientation" as a protected class based on it's own merits, it isn't necessary to defend any other type of proposed class, and within that context, invited you to open other threads to discuss why economic status or living location should be a protected class, since it seem to me as if that's superfluous to identifying sexual orientation as a protected class. However, if you really feel that discussing economic status and living location, and comparing that to sexual orientation, will help me understand or help you prove your point, feel free to expand on those, if you wish. Edited April 3, 2017 by Daniel2 2
thesometimesaint Posted April 3, 2017 Posted April 3, 2017 To me it is a rather simple principle. Do unto others as you would have them do unto you. 1
kllindley Posted April 3, 2017 Posted April 3, 2017 Ok. Acknowledged. In a society where protected class has become such a broad and inclusive ideology, sexual orientation does meet the current criteria. Also 1) so do a number of other classes, which will be interesting to see just how inclusive this idea will become. And 2) whether current criteria are justified remains to be seen.
thesometimesaint Posted April 3, 2017 Posted April 3, 2017 4 minutes ago, kllindley said: Ok. Acknowledged. In a society where protected class has become such a broad and inclusive ideology, sexual orientation does meet the current criteria. Also 1) so do a number of other classes, which will be interesting to see just how inclusive this idea will become. And 2) whether current criteria are justified remains to be seen. Not too sure it is just an ideological discussion. The 14th Amendment seems pretty definitive to me. 1
kllindley Posted April 3, 2017 Posted April 3, 2017 19 minutes ago, thesometimesaint said: Not too sure it is just an ideological discussion. The 14th Amendment seems pretty definitive to me. Have you not been reading along in the discussion? The 14th amendment has nothing to do with protected classes. It's due process clause was the basis for the Obergefell v Hodges decision that right to marry was a fundamental right that could not be infringed upon in relation to same-sex couples. The idea of Protected Class is much more recent, being based in Federal Law beginning in 1964. Each protected class is identified in a specific Federal Law. This is also different from ruling whether a class is suspect (in relation to the Equal Protection Clause of the 14th Amendment.) Whether new federal law should be introduced naming sexual orientation as a protected class is completely ideological at this point. The fact that some states have already included it in their anti-discrimination laws is relevant, but not proof of correctness. Daniel, (and many others) see no differences between sexual orientation and the currently recognized protected classes: Race, Color, Religion, National Origin, Age (40 and over), Sex, Pregnancy, Citizenship, Familial Status, Disability status, veteran status, and genetic information. He believes that is enough justification to include it in new federal law as a protected class. He refuses to consider the fact that in so doing, he is favoring this class over many others that could also be added as protected classes and avoiding any substantial discussion of what should qualify as a protected class and what limitations, if any, ought to be applied. Daniel, maybe you can help explain why you cited an article which deals wholly with the idea of "suspect class," in the middle of a discussion about protected classes?
Daniel2 Posted April 5, 2017 Author Posted April 5, 2017 (edited) On 4/3/2017 at 1:58 PM, kllindley said: Daniel, (and many others) see no differences between sexual orientation and the currently recognized protected classes: Race, Color, Religion, National Origin, Age (40 and over), Sex, Pregnancy, Citizenship, Familial Status, Disability status, veteran status, and genetic information. He believes that is enough justification to include it in new federal law as a protected class. He refuses to consider the fact that in so doing, he is favoring this class over many others that could also be added as protected classes and avoiding any substantial discussion of what should qualify as a protected class and what limitations, if any, ought to be applied. Daniel, maybe you can help explain why you cited an article which deals wholly with the idea of "suspect class," in the middle of a discussion about protected classes? Couple of things: a) With all due respect, no... It's not a foregone conclusion, and certainly not "a fact," that recognizing "sexual orientation as a protected class" would "favor this class over many others that could also be added as protected classes." I understand that is what you believe, but you haven't presented any facts as to support that view, and it seems nonsensical to me to assert that recognizing new classes for protection and heightened levels of scrutiny "favors them over many others that could possibly be recognized." After all, you could make the same argument that EXISTING protected classes ALREADY subject to heightened levels of scrutiny "favors them over many others that could possibly be recognized." But the fact that other classes may still be recognized in the future should not impede the recognition of already-existing OR newly-emerging/recognized classes. That's like saying, "Even though classes A, B, C, and D are already recognized, we can't recognize class E, because the government may eventually recognize F, G, Q, N, and Z as protected classes... so we can't recognize class E." Doesn't make any sense at all. b) Again, no.... I have not "avoided any substantial discussion of what should quality as a protected class and what limits ought to be applied." Rather, I researched the subject of what the law says, the legal precedent for identifying such classes, and provided articles with citations demonstrating my research. Doing research and citing sources is EXACTLY the type of substance that most discussions are missing, and are the exact opposite of "avoiding substantial discussion." c) Additionally, despite my initial invitation to open new threads on the other potential classes to avoid tangential topics in this thread, in my post above on Monday at 12:22 pm, I subsequently invited you to share and discuss the issue further by saying, Quote However, if you really feel that discussing economic status and living location, and comparing that to sexual orientation, will help me understand or help you prove your point, feel free to expand on those, if you wish. I'd love to engage with you on the substance of these issues--including the legal precedent--but please refrain from twisting my actions, behaviors, and willingness to engage in discussion. d) I've discussed protected classes along with the levels of scrutiny they receive because they are both related issues. Do you believe they are unrelated or dissimilar? Do you feel the citations I've shared are irrelevant or off-topic....? Edited April 5, 2017 by Daniel2
kllindley Posted April 5, 2017 Posted April 5, 2017 a) I'm sorry, I'm not trying to twist your words or actions. I guess it seems self-evident to me that advocating that sexual orientation bee added as a federally protected class is favoring that class above others that you aren't also advocating for. It just means that out of all the classes that could be put forward for consideration, you and others are giving priority to sexual orientation. That was meant to be a description, not an accusation. And I would say that yes absolutely, the existing protected classes are favored above other classes. Not that they are better, more accurate, or relevant, but they are protected while others are not. b) I still think the substance I was talking about is lacking. When I asked what makes sexual orientation worthy of including as a protected class, you responded with asking me to prove why it shouldn't be or ask me whether I support the protection of other existing classes. This skirts the question of what makes a class worthy of special legal protections. c) I guess I did not "really feel" that getting into a discussion of other potential classes would be effective at helping you understand my perspective. And I didn't feel a need to prove my point. I still don't get the feeling that you are ever going to admit that there might be reasonable justification for not including sexual orientation as a protected class, even if you believe that those concerns are outweighed by the reasons to make it one. d) As far as I can see from the research I have done, protected classes and suspect classes are completely unrelated legal concepts except for the fact that they both have the word class. I am open to being corrected, but so far all of your citations are about "suspect classes/scrutiny" derived from the 14th amendment. The idea of protected class is not rooted in the constitution, but in Civil Rights legislation. I would add that I felt that you incorrectly described my arguments against sexual orientation being a suspect class subject to strict scrutiny as being rooted in immutability when the precedent in that decision includes other criteria. I was more focused on fact that I don't think sexual orientation does not define a discreet population. If we are going to define it as choice of gender of partner, lets not use orientation (unchosen) but a term that accurately describes a choice. I think that for any constructive dialogue to continue we will need to separate out ideas of suspect class and protected class. In reference to protected classes, I have said before that I do not generally approve of anti-discrimination legislation from a political perspective. This is not because I condone discrimination. Just like my objection to laws making marijuana use illegal does not mean I approve of marijuana use. Yes this would include race and religion. I think it ought to be legal in most cases to discriminate on the basis of these classes. From this initial starting point, telling me that sexual orientation is the same as other protected classes isn't very persuasive. I think we first need to establish why we would protect certain classes and not others. That is the discussion that seems glossed over.
thesometimesaint Posted April 6, 2017 Posted April 6, 2017 On 4/3/2017 at 0:58 PM, kllindley said: Have you not been reading along in the discussion? The 14th amendment has nothing to do with protected classes. It's due process clause was the basis for the Obergefell v Hodges decision that right to marry was a fundamental right that could not be infringed upon in relation to same-sex couples. The idea of Protected Class is much more recent, being based in Federal Law beginning in 1964. Each protected class is identified in a specific Federal Law. This is also different from ruling whether a class is suspect (in relation to the Equal Protection Clause of the 14th Amendment.) Whether new federal law should be introduced naming sexual orientation as a protected class is completely ideological at this point. The fact that some states have already included it in their anti-discrimination laws is relevant, but not proof of correctness. Daniel, (and many others) see no differences between sexual orientation and the currently recognized protected classes: Race, Color, Religion, National Origin, Age (40 and over), Sex, Pregnancy, Citizenship, Familial Status, Disability status, veteran status, and genetic information. He believes that is enough justification to include it in new federal law as a protected class. He refuses to consider the fact that in so doing, he is favoring this class over many others that could also be added as protected classes and avoiding any substantial discussion of what should qualify as a protected class and what limitations, if any, ought to be applied. Daniel, maybe you can help explain why you cited an article which deals wholly with the idea of "suspect class," in the middle of a discussion about protected classes? True; the 14th Amendment isn't about protected classes per say. What it says is if you were born here or became a naturalized citizen you are in a protected class.
Daniel2 Posted April 6, 2017 Author Posted April 6, 2017 (edited) 18 hours ago, kllindley said: I think that for any constructive dialogue to continue we will need to separate out ideas of suspect class and protected class. In reference to protected classes, I have said before that I do not generally approve of anti-discrimination legislation from a political perspective. This is not because I condone discrimination. Just like my objection to laws making marijuana use illegal does not mean I approve of marijuana use. Yes this would include race and religion. I think it ought to be legal in most cases to discriminate on the basis of these classes. From this initial starting point, telling me that sexual orientation is the same as other protected classes isn't very persuasive. I think we first need to establish why we would protect certain classes and not others. That is the discussion that seems glossed over. I'm short on time at the moment, and don't have time to formulate a proper response to your whole put just yet, but I will do so, when I have a bit more time. In the meantime, I do agree that it would be helpful for me to understand exactly what you believe the qualifications are to be considered a protected class. I know we discussed this earlier, and I apologize if you feel like I'm asking again, but I thought I was answering your questions, but it appears that you feel I'm not. In order to 're-set' the dialogue so we're not talking past each other, can you please summarize what you feel are the qualifications to be considered a protected class? I'll write more later. Thanks... D Edited April 6, 2017 by Daniel2
Daniel2 Posted April 7, 2017 Author Posted April 7, 2017 (edited) Incidentally, there have been two conflicting rulings in Courts of Appeals in the last two weeks about whether or not discriminating against employees on the basis of their sexual orientation falls under "discrimination on the basis of sex." Last week, a 3-Judge panel ruled 2-to-1 against considering sexual orientation as part of sex discrimination. Two days ago, an 11-Judge 'en banc' Court of Appeals ruled exactly the opposite in an 8-to-3 decision, finding that discrimination against sexual orientation does fall under "discrimination on the basis of sex": Quote In the decision on Tuesday, the judges ruled by an 8-to-3 vote that the civil rights law, which already prohibits discrimination on a variety of factors, also includes protections based on sexual orientation. They concluded that such discrimination was no different from a form of sex discrimination, which the law prohibits. Five of the eight judges in the majority were appointed by Republican presidents. This New York Times article summarizes the conflicting rulings and ponders how it will play out legally: Quote Civil Rights Act Protects Gay Workers, Court Rules By MATTHEW HAAG and NIRAJ CHOKSHI APRIL 4, 2017 Title VII of the Civil Rights Act of 1964. A federal appeals court in Chicago ruled that the act protects gay employees from job discrimination. Credit Mannie Garcia/Reuters In a significant victory for gay rights, a federal appeals court in Chicago ruled Tuesday that the 1964 Civil Rights Act protects gay workers from job discrimination, expanding workplace protections in the landmark law to include sexual orientation. The decision by the United States Court of Appeals for the Seventh Circuit, the highest federal court yet to grant such employment protections, raises the chances that the politically charged issue may ultimately be resolved by the Supreme Court. While an appeal is not expected in this case, another appellate court, in Georgia, last month reached the opposite conclusion, saying that the law does not prohibit discrimination at work for gay employees. The ruling on Tuesday comes as gay rights advocates have voiced concern about the potential rollback of protections under President Trump. While the Supreme Court legalized same-sex marriage, many other legal protections, including in employment and housing, have not been extended at all levels to gay people. The White House considered and then scuttled a plan to overturn Obama-era protections for lesbian, gay, bisexual and transgender people. But the Trump administration also rescinded protections for transgender students that had allowed them to use bathrooms corresponding with their gender identity. In the decision on Tuesday, the judges ruled by an 8-to-3 vote that the civil rights law, which already prohibits discrimination on a variety of factors, also includes protections based on sexual orientation. They concluded that such discrimination was no different from a form of sex discrimination, which the law prohibits. Five of the eight judges in the majority were appointed by Republican presidents. The case stems from a lawsuit by Kimberly Hively, an Indiana teacher who has alleged that she was fired from Ivy Tech Community College because she is a lesbian. She applied to six full-time jobs at the school in South Bend, Ind., that she did not get, and she was let go from her part-time position there in 2014. The community college denies that she was discriminated against because of her sexual orientation. “Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction and policing,” the court’s chief judge, Diane P. Wood, wrote in the opinion. “Ivy Tech is disadvantaging her because she is a woman.” The court did not rule on Ms. Hively’s specific anti-discrimination lawsuit. But the ruling allows for Ms. Hively’s employment case to proceed. A lower court had dismissed her case, ruling that the Civil Rights Act did not include sexual orientation protections. Ms. Hively, who represented herself in the lower court because she said no lawyer thought she would win, said late on Tuesday that she was still processing the significance of the ruling. “I wasn’t doing it just for me, but for anyone who was going to be bullied in a job for who they decided to love,” she said in an interview. Greg Nevins, the employment fairness program director for Lambda Legal, which represented Ms. Hively, called the ruling a “tremendous victory.” He said the Seventh Circuit’s approach to the Civil Rights Act was a momentous shift from past cases. “The problem with the old decisions was a focus on the words that were not in the statute — ‘We don’t see sexual orientation in the statute, so you lose’ — instead of what is in it: sex discrimination,” Mr. Nevins said in an interview. An official at Ivy Tech said on Tuesday night that it “respects and appreciates” the ruling and does not plan to appeal it to the Supreme Court. “The college denies that it discriminated against the plaintiff on the basis of her sex or sexual orientation and will defend the plaintiff’s claims on the merits in the trial court,” said the official, Jeff Fanter, the senior vice president for communication and marketing at Ivy Tech. Lawyers with the firm Barnes & Thornburg, which is representing Ivy Tech, did not immediately return phone calls or respond to emails. In another case involving sexual orientation and the federal civil rights law, an employee at Georgia Regional Hospital in Savannah claimed that she was essentially forced out of her security guard job because she is a lesbian. A three-judge panel in the United States Court of Appeals for the 11th Circuit ruled last month that the law did not apply to her. In a case in New York, an employee at Omnicom Group, a marketing company, said a manager repeatedly taunted him because he is gay. A federal judge dismissed the case, which was appealed to the United States Court of Appeals for the Second Circuit. A three-judge panel ruled last week against the employee, but the chief judge, Robert A. Katzmann, noted that legal and societal views had shifted on legal protections and rights for gay people. “Other federal courts are also grappling with this question, and it well may be that the Supreme Court will ultimately address it,” he wrote. Susan Chana Lask, who is representing the employee in the New York case, said she planned to ask for a rehearing before the entire Second Circuit appeals court. Edited April 7, 2017 by Daniel2
kllindley Posted April 7, 2017 Posted April 7, 2017 20 hours ago, Daniel2 said: please summarize what you feel are the qualifications to be considered a protected class? I am unclear here whether you mean what I think the qualifications currently are, or what I think they should be. To the first, I've stated quite clearly that the only qualifications to be considered a protected class is that federal or state law makes it as such. I agreed that under current cultural ideology, there is nothing prohibiting sexual orientation from getting its own law (or being considered part of sex discrimination if the seventh circuit court's ruling which goes against every other appellate court decision in history becomes mainline.) In answer to the second question, I think that anti-discrimination has become a religious principle for many in America today. I agree that there have been times when discrimination was so widespread, so egregious, and so socially acceptable, that there was justification for legally enforcing the value of non-discrimination. The Civil Rights Movement of the 1960s is a great example. I don't believe we can honestly say that social treatment of LGBT really compared to the treatment of Blacks at that time. It was more than the inconvenience of having to go down the street to the next florist, baker, or photographer. I believe that in order for a class to truly deserve to be considered protected legally, there must be compelling evidence that a majority of the class routinely face discrimination that infringes on their rights of life, liberty, or ability to live and provide for themselves. As in most of the class regularly face eviction, job loss, or violence. Not inconvenience or hurt feelings. 1
thesometimesaint Posted April 7, 2017 Posted April 7, 2017 Legally blacks could always go down the street to find some other black to treat them like the men they were. In practice not so much.
kllindley Posted April 7, 2017 Posted April 7, 2017 1 hour ago, thesometimesaint said: Legally blacks could always go down the street to find some other black to treat them like the men they were. In practice not so much. Exactly. Wish us why there was a compelling justification for the Civil Rights Act.
Daniel2 Posted April 8, 2017 Author Posted April 8, 2017 (edited) 6 hours ago, kllindley said: Exactly. Wish us why there was a compelling justification for the Civil Rights Act. Ah. So.... do you actually have any idea how many gays and lesbians have been denied services...? How have you gone about quantifying such? Is there a specific number or percentage of "turn downs" we have to hit according to your standards before we qualify for anti-discrimination protection? Is there any legal precedent that suggests that discrimination must be at a certain level before groups should be protected...? Did veterans have to hit any such threshold with "compelling evidence that a majority of the class routinely face discrimination that infringes on their rights of life, liberty, or ability to live and provide for themselves"? Did the disabled? How did we qualify those groups...? Can you point to such statistics that were utilized in designating them as protected classes? Finally, if I were able to show you compelling evidence that the majority of gays, lesbians, and transgendered individual routinely face discrimination that infringes on their rights of life, liberty, or an ability to live and provide for themselves, would that change your mind....? Edited April 8, 2017 by Daniel2
kllindley Posted April 8, 2017 Posted April 8, 2017 (edited) 24 minutes ago, Daniel2 said: Ah. So.... do you actually have any idea how many gays and lesbians have been denied services...? How have you gone about quantifying such? Is there a specific number or percentage of "turn downs" we have to hit according to your standards before we qualify for anti-discrimination protection? Is there any legal precedent that suggests that discrimination must be at a certain level before groups should be protected...? Did veterans have to hit any such threshold with "compelling evidence that a majority of the class routinely face discrimination that infringes on their rights of life, liberty, or ability to live and provide for themselves"? Did the disabled? How did we qualify those groups...? Can you point to such statistics that were utilized in designating them as protected classes? Finally, if I were able to show you compelling evidence that the majority of gays, lesbians, and transgendered individual routinely face discrimination that infringes on their rights of life, liberty, or an ability to live and provide for themselves, would that change your mind....? I see we've moved past dialogue. If we were ever actually there. Edited April 8, 2017 by kllindley
Daniel2 Posted April 8, 2017 Author Posted April 8, 2017 1 hour ago, kllindley said: I see we've moved past dialogue. If we were ever actually there. I'm sorry to hear you feel that we've moved pasted dialogue. I am still engaged, and my questions were meant in earnest. As a gay man, I'm aware of many members of the LGBT community that have experienced significant discrimination in their lives, and while I don't have the numbers at my fingertips, I'm happy to do some digging to see what numbers are available, which seems to be what you were getting at. My asking how you make the determination of "who gets protected" and "how do you quantify" were in direct response to your comments suggesting that gays and lesbians haven't experienced enough discrimination to qualify for protection apparently because gays and lesbians treatment wasn't as egregious as that endured by blacks--a statement I don't necessarily disagree with, but one that I don't feel is particularly relevant to whether or not "sexual orientation" should be protected, since other protected classes also experienced significantly better treatment than blacks, but still qualified for protection, nonetheless. If you make a statement that "the majority must experience" discrimination, yet that hasn't been consistent across all protected classes, I'm trying to identify where you draw the line. If you feel my questions are uncalled for or out of line, I welcome your response on that front, as well. I'm happy to continue the dialogue, and hope you decide to continue.
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