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"Protected class" refers to classifications that are protected under statutes. "Protected class" refers to statutory protections, not constitutional protections.
Federal civil right laws define several protected classes: race, religion, national origin, sex. Congress determines protected classes, not the judiciary. Windsor had nothing to do with Federal Anti-Discrimination Statutes and had nothing to do with making sexual orientation a protected class under them. The Supreme Court does not have the power to do that.
Suspect classes refers to classifications that are afforded Constitutional heightened protections under the 5th and 14th Amendments. Suspect classes are afforded strict scrutiny; quasi-suspect classes are afforded intermediate review; and all other classes are given rational review.
The Supreme Court has never held that sexual orientation is either a suspect or quasi-suspect class. In Windsor, the Court held that DOMA didn't even meet the lowest, rational basis standard.
Semantics!
why don't you ask jjrose? Because he/she is under the assumption homosexuals ARE a protected class as well... And he/she IS one, no?
why don't you ask jjrose? Because he/she is under the assumption homosexuals ARE protected classes as well... And he/she IS one, no?
It's not semantics at all.
First, you're confusing statutory protections with constitutional rights.
There is nothing unconstitutional about a business - anywhere in the US - denying service to a person because that person is Christian or black or gay or Mexican, etc. That's a relationship between two private parties, and the Constitution only applies to interactions between people and governments.
Congress decided to pass a law regulating the relationship between businesses and people. That law created "protected classes" and said that (certain) businesses could not discriminate against these protected classes. Sexual orientation is not one of these protected classes because congress didn't include it as one. And as a statutory protection (rather than a constitutional right), the court system - including the Supreme Court - has no authority to add sexual orientation (or any other class) as a "protected class." The only constitutional role the judiciary has regarding such laws is to decide whether the law in general violates the Constitution (which the SC unanimously has ruled it does not).
DOMA was a law that instructed the government to discriminate against a class of people. As a relationship between people and government, it does come under constitutional scrutiny. Specifically, it comes under 5th and 14th Amendments Due Process and Equal Protection scrutiny. For Equal Protection purposes, the class of people being discriminated against is put into one of three categories: suspect, quasi-suspect, and default.
For suspect classes, for the law to be constitutional, the government must show it has a compelling reason to discriminate and that the discriminatory means the law uses to achieve the compelling reason are the only means possible (i.e. not other way exists). This is called "strict scrutiny." The Supreme Court has only held race, religion, and alienage (national origin) to be suspect classes.
For quasi-suspect classes, for the law to be constitutional, the government must show it has an important reason to discriminate and that the discriminatory means the law uses are substantially related to the important reason. This is called "intermediate scrutiny." The Supreme Court has only held gender and birth-legitimacy (whether you're a bastard or not) to be quasi-suspect classes.
For default classes (everything that's not suspect or quasi-suspect), for the law to be constitutional, the government must show it has a legitimate reason to discriminate and that the discriminatory means the law uses are rationally related to the legitimate reason. This is called "rational review."
Sexual orientation has never been held to be either a suspect of quasi-suspect class by the Supreme Court. In Windsor, the court did not apply either strict or intermediate scrutiny. The Court in Windsor said that DOMA failed the rational review (default class) standard.
So in sum, sexual orientation has not been designated by Congress as a "protected class" in regard to statutory anti-discrimination purposes, nor has the Supreme Court declared or treated sexual orientation as either a "suspect class" or "quasi-suspect class" for Constitutional (Equal Protection) purposes.
There will eventually be a gay couple in a very tiny town in a rural area with only one cake maker and the second closest 30 or 40 miles away or possibly more. I believe they were taking the court action on principle for this reason and not only for themselves.
FYI: Colorado has both remote mountain towns in its western region and remote towns in its eastern region that will have these situations. Most the population is on the I-25 corridor there (Fort Collins-Denver-Colorado Springs all along this route).
Convenience is not the central point in any event. I suppose one could have also argued if black people in the South in the early 60's could not get served at the Woolworth's diners that banned them then, they could have found one not too far away if they looked for one. However, the central point is about equality. I just thought this would be a good time to explain that CO has several tiny, remote towns in its state away from the I-25 corridor.
First, you're confusing statutory protections with constitutional rights.
There is nothing unconstitutional about a business - anywhere in the US - denying service to a person because that person is Christian or black or gay or Mexican, etc. That's a relationship between two private parties, and the Constitution only applies to interactions between people and governments.
Congress decided to pass a law regulating the relationship between businesses and people. That law created "protected classes" and said that (certain) businesses could not discriminate against these protected classes. Sexual orientation is not one of these protected classes because congress didn't include it as one. And as a statutory protection (rather than a constitutional right), the court system - including the Supreme Court - has no authority to add sexual orientation (or any other class) as a "protected class." The only constitutional role the judiciary has regarding such laws is to decide whether the law in general violates the Constitution (which the SC unanimously has ruled it does not).
DOMA was a law that instructed the government to discriminate against a class of people. As a relationship between people and government, it does come under constitutional scrutiny. Specifically, it comes under 5th and 14th Amendments Due Process and Equal Protection scrutiny. For Equal Protection purposes, the class of people being discriminated against is put into one of three categories: suspect, quasi-suspect, and default.
For suspect classes, for the law to be constitutional, the government must show it has a compelling reason to discriminate and that the discriminatory means the law uses to achieve the compelling reason are the only means possible (i.e. not other way exists). This is called "strict scrutiny." The Supreme Court has only held race, religion, and alienage (national origin) to be suspect classes.
For quasi-suspect classes, for the law to be constitutional, the government must show it has an important reason to discriminate and that the discriminatory means the law uses are substantially related to the important reason. This is called "intermediate scrutiny." The Supreme Court has only held gender and birth-legitimacy (whether you're a bastard or not) to be quasi-suspect classes.
For default classes (everything that's not suspect or quasi-suspect), for the law to be constitutional, the government must show it has a legitimate reason to discriminate and that the discriminatory means the law uses are rationally related to the legitimate reason. This is called "rational review."
Sexual orientation has never been held to be either a suspect of quasi-suspect class by the Supreme Court. In Windsor, the court did not apply either strict or intermediate scrutiny. The Court in Windsor said that DOMA failed the rational review (default class) standard.
So in sum, sexual orientation has not been designated by Congress as a "protected class" in regard to statutory anti-discrimination purposes, nor has the Supreme Court declared or treated sexual orientation as either a "suspect class" or "quasi-suspect class" for Constitutional (Equal Protection) purposes.
Dance around it all you want....
The 5th amendments due process clause, which holds a guarantee of equal protection of the laws, isn't explicitly expressed in the Constitution...but the SC uses it in such a way in determination.
Also, why would they bring S.2 before the court? States need to recognize all other states matters except this? Very odd.
Also, the fact that Kennedeys swing vote on the issue came on the heels of him voting away voter right protections is downright bizarre and very telling.
if it looks like a fish...and smells like a fish...
it must be a fish...
I haven't danced around anything. I've accurately explained the current state of the law.
Quote:
The 5th amendments due process clause, which holds a guarantee of equal protection of the laws, isn't explicitly expressed in the Constitution...but the SC uses it in such a way in determination.
The guarantee of equal protection is found in the Equal Protection clause, not the Due Process clause. And the guarantee certainly is explicitly expressed.
Quote:
Also, why would they bring S.2 before the court? States need to recognize all other states matters except this? Very odd.
S.2? What is that?
Quote:
Also, the fact that Kennedeys swing vote on the issue came on the heels of him voting away voter right protections is downright bizarre and very telling.
What are you talking about here?
Quote:
if it looks like a fish...and smells like a fish...
it must be a fish...
Gays are a protected class.
What do you mean "gays are a protected class." Please define to me what you mean by "protected class."
There is a legal definition of what "protected class" means, and sexual orientation isn't a federally protected class (although it is a protected class in Colorado), nor is sexual orientation a "suspect" or "quasi-suspect" class.
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