National Organization for Marriage seems intenton proving that gays are not a “suspect class.” Exactly why they are doing so is inexplicable. Do they think that their blog is going to influence the Supreme Court? Nevertheless, they have posted items over the last two days titled:
- Politically Powerless? “Openly Gay Leaders Will Control Legislative Chambers in Five States” and;
- Politically Powerless? HRC’s Griffen Demands Obama Appoint “First Openly LGBT Cabinet Secretary, G-8 Ambassador” and “Judges as Well”
You may be hearing more about this in the coming months. Whether or not gays are a suspect class may be an issue in both the DOMA and Prop 8 cases.
A suspect class is a group of people who are entitled to strict scrutiny. Strict scrutiny means that a law must demonstrate a compelling government interest; must be narrowly tailored and must be the least restrictive means of achieving the government’s compelling interest. Race, religion and national origin are examples of suspect classes that have been recognized by the Supreme Court.
NOM seems intent on affirming their irrelevance.
The Court has never defined what a suspect class is. However, political powerlessness is a criterion cited in past cases. Having an immutable characteristic and having historically been subjected to discrimination could be sufficient for a determination that gays are a suspect class.
The Supreme Court never has to get to the point of determining whether or not gays are a suspect class. For example, in his findings of fact in the Prop 8 case, Judge Walker (U.S. District Court for the Northern District of California) wrote that gays might be a suspect class. The issue was irrelevant because Prop 8 would not pass muster, even under a lower standard.