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Is sexual orientation a suspect classification?

Posted by Maggie on Wednesday, June 16th at 2:09pm

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The final exchange between Walker and Cooper:

Walker: Isn’t it historical context that determines whether a group is a suspect classification? (Women have power, but gender is still suspect.  Blacks have power, but race is still suspect).

Walker: Prop 8 and propositions in other states that limit marriage to opposite sex couples, DOMA, the exclusion of gays and lesbians from military service, aren’t these all indices of a long history of discrimination.

Cooper: We do not dispute that gays and lesbians have had a long and shameful history of discrimination. But the fact of a history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny. The court has insisted as well on immutability and political powerlessness at the time the issue comes before the court.

The 9th circuit believed even 20 years ago that gays and lesbians were not politically powerless then. It follows that it must be true today.  Even though the mentally retarded had a history of discrimination, and mental disability is immutable, they could not qualify for heightened scrutiny because the mentally disabled had political power. They had to rely on allies.


John K. Noe
June 16, 2010
4:43 pm

Constitution does not support equality of behavior or equaity of results. Constitution supports equality of people under the law. Homosexuality is a behavior. It does not matter if you discriminate against behavior. Because it is constitutional. Constitution does not support equal results. Because someone does something different does not entitle them to equal results.

June 18, 2010
6:53 pm

John, your statement is factually incorrect. Religion is treated as a suspect classification under the Constitution. Religion is ONLY a learned behavior. No one is born religious and you certainly have a choice to be religious or agnostic. In fact, numerous state supreme courts have already ruled that sexual orientation is in fact a suspect classification. You might want to actually check your facts.

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