What constitutes a “suspect class?”

A piece that ran this weekend at the New York Times did a great job of analyzing the Defense Of Marriage Act and the issues at play when considering legal discrimination against gay people and how the Obama administration may be forced to take a more visible stance on equal marriage. I am currently taking a course on Public Health and the Law and this week we are evaluating the hallmark Lawrence v. Texas decision which rendered unconstitutional laws that criminalized gay sex. The lecture involves considering the equal protection clause of the constitution and the circumstances that allow for certain groups to be treated differently. The NYT piece clearly explains the two tests that determine different treatment here:

A law singling out an ordinary class — like owners of property in a district with special tax rates — gets an easy test. It is presumed valid, and a challenge is dismissed unless a plaintiff proves that the law advances no conceivable rational state interest.

But a law focusing on a class that has often been subjected to unfair discrimination — like a racial group — gets a hard test. It is presumed invalid and struck down unless the government proves that officials’ purpose in adopting the law advances a compelling interest.

Racial and religious groups have historically been given this hard test because they are recognized as belonging to a suspect class, or a group that has a history of discrimination, is a discrete minority, has immutable characteristics, and is not seen as politically powerful. Whether gay people should qualify as a suspect class may seem like a no-brainer, but considering that the oft-heralded legal precedent “Lawrence v. Texas” is dubious about a long history of discrimination and doesn’t touch the notion of “immutable characteristics” with a 40-ft pole, I think it’s worth it to go through each piece of criterion and offer some rationale.

History of Discrimination – The state of New York is challenging the federal government in a lawsuit, and, ironically, New York is the site of the Stonewall Rebellion. This moment of resistance against a state sanctioned police force that would “routinely raid gay bars, harass gay customers and arrest trans-folks” is just one example of the history of discrimination that gay people have faced in this country.

A Discrete Minority – This is primarily evaluated by assessing what percentage a group is of the population. The most recent Census is the first to include gay folks, and although they don’t include single people, the preliminary data would largely position gay people in the “discrete minority” category. The Census estimates that there are 581,000 gay couples. While my professor also noted that “no one would suggest that gay people are more than 40 percent of the population” he also said that current estimates are around 11 percent, a decidedly discrete minority.

Immutable Characteristics – This refers to whether an individual can leave a group or not. The article I referenced for the Census data had a misleading quote by demographer Gary Gates that is relevant to this notion of immutable characteristics: “A large number of gay couples, possibly a majority, entered into their current relationship after first having children with partners in heterosexual relationships.” The sex or gender of one’s partner shouldn’t be the only indicator of one’s sexual orientation. As long as the administration is willing to acknowledge that sexual orientation is a category that is independent from relationship status, it will be difficult to make the case that one can completely disavow themselves from feelings they have for the same sex. Still, I’ll admit that this criterion may pose the most trouble.

Political Power – This can be subjective. However, one indicator is the number of openly gay members of congress. Out of 535 members in the 112th congress, there are only four–four!– gay congresspersons. If gay people have such scant representation in the US Congress, their political power is largely in question.

In the end, the Administration has until March 11, 2011 to decide. In the meantime, you can send the administration your thoughts here.