Suspect Classifications

On March 26, 2013, the United States Supreme Court heard oral argument in the case of Hollingsworth v. Perry, better known as the Proposition 8 case.  The arguments can be heard in their entirety on the Supreme Court's website, here.  After listening to the arguments, I was struck by the relative lack of discussion regarding whether sexual orientation qualifies as a suspect classification.  Both parties briefly touched on the issue, but most of the time was spent arguing whether there was a rational basis for limiting marriage to one man and one woman.  This post is a brief outline of what suspect classifications are and how the Court should determine whether sexual orientation is one.     

The Fourteenth Amendment states: "[No State may] deny to any person within its jurisdiction the equal protection of the laws."  U.S. Constitution, Amend. XIV, Section 1.  Yet, people have not always been treated equally, and since passage of the Fourteenth Amendment in 1868, Courts have not always held discriminatory laws unconstitutional.  Prior to the 1950s, Courts generally deferred to state and federal legislatures, holding that discriminatory laws were constitutional so long as there was a rational basis to justify it.

It wasn't until the 1930s that the Court began expressing some concern regarding equal protection for minorities.  In United States v. Carolene Products, 304 U.S. 144 (1938), Justice Stone included a footnote stating: "[S]tatutes directed at particular religious, or national, or racial minorities . . . may call for a . . . more searching judicial inquiry."  Later Justices also grasped onto the need for a more penetrating inquiry into laws that discriminate.  In 1944, Justice Hugo Black described legal restrictions which curtail the civil rights of a single racial group as "immediately suspect" and deserving of "more rigid scrutiny."  Korematsu v. United States, 323 U.S. 214. 216 (1944).

Over the next few decades, the Court gradually developed the notion of "suspect classifications" and "strict scrutiny."  The doctrine provides that if a law discriminates based on a "suspect classification," then the government must prove that the law is narrowly tailored to advance a compelling governmental interest and that there is not any less restrictive means to achieve the compelling interest.  Because it is nearly impossible for the government to satisfy its burden to meet strict scrutiny, finding that a law discriminates based on a "suspect classification" nearly always results in the law being found unconstitutional.

Cases such as Korematsu and Brown v. Board of Education, which rejected the doctrine of separate but equal and forced integration of schools, clearly established that a person's race was a suspect classification.  In 1954, the Supreme Court added a person's ancestry or nationality to the list of suspect classifications. Hernandez v. Texas, 347 U.S. 475 (1954).  It is not, however, the law that every minority group qualifies as a suspect classification.

In San Antonio v. Rodriguez, 411 U.S. 1 (1950), Justice Powell defined a "suspect class" as a group that has been

saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political processes.

In Plyler v. Doe, 457 U.S. 202 (1982), Justice Brennan, in a footnote, again attempted to explain which groups may qualify as a suspect class.  He states:

Several formulations might explain our treatment of certain classifications as "suspect."  Some . . . are more likely than others to reflect deep-seated prejudice . . . [and are] easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and to be entitled to equal justice under the law.  Classifications treated as suspect tend to be irrelevant to any proper legislative goal. See McLaughlin v. Florida (1964); Hirabayashi v. United States (1943). Finally, certain groups . . . have historically been "relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio v. Rodriguez (1973); see United States v. Carolene Products (1938).  . . . Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of "class or caste" treatment that the Fourteenth Amendment was designed to abolish.

The attempts to define which groups are entitled to be a suspect class raise several questions:  How long must a group's history of purposeful unequal treatment be?  How much political power is enough to bar consideration as a suspect class? Must the history of unequal treatment be recent?  Must inclusion in the group be completely beyond the individual's control?

Determining whether a group qualifies as a suspect class is an exercise which the Supreme Court has occasionally needed to address.  They have faced claims from groups including: illegitimate children, the elderly, the poor, aliens, women, homosexuals, and the disabled, among others.  Interestingly, women are not deemed a "suspect class," but rather deemed "somewhat suspicious" or "quasi-suspect" and the Court created a new level of scrutiny, "intermediate scrutiny," requiring the law be "substantially related" to an "important" governmental interest. Craig v. Boren, 429 U.S. 190 (1976).

The Supreme Court previously had the opportunity to determine whether sexual preference is a protected class, but determined it was not necessary at that time.  In Romer v. Evans, 517 U.S. 620 (1996), the Court reviewed Colorado's Amendment 2, which read:

Neither the State of Colorado . . . nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. 

In a 6 to 3 decision, the Court held that Amendment 2 "lack[ed] a rational relationship to legitimate state interests."  This ruling allowed the Court to strike down Amendment 2 without needing to address whether sexual preference qualifies as a suspect classification, because the law would not survive even the least stringent inquiry, rational basis scrutiny.

The Proposition 8 case presents the Supreme Court with a second opportunity to analyze whether sexual preference is a suspect classification.  The relative lack of discussion on the issue during oral argument is concerning to me.  This is the threshold inquiry.  Only if sexual orientation is a "suspect classification", or "quasi-suspect classification" does the government need to show a "compelling" or "important" governmental interest that the law advances.  Otherwise, the government need only show that the law is rationally related to some governmental interest.  This is the crux of the entire issue.  What do you think?  Please answer my poll question and leave your comments.