Early last week I wrote a post about the median income of gay identified households being $80-$83,000. Those statistics and the comparative stats came from the Census Bureau and a well established secular media research group. In all, it was the Census Bureau and the gay community themselves that provided the stats.
One comment challenged my argument that three criteria were established in the Civil Rights Act of 1964. I believed that they exclude the gay identified community from protected class status. The three criteria I stated were 1) Immutability, 2) Economic disenfranchisement and 3) a proven widespread pattern of discrimination. I know for a fact personally that it isn’t immutable and while the gay identified community suffers crime … so does every community. They have not proven that their are deserving of protected class status more than other victims of violent crimes. As for the economic disenfranchisement… take a look at that post again. Not only is there not any, the gay identified community told the Census Bureau and the marketing company that they make a lot more than any other community in the country (median wise.)
So, to answer Emily’s question, I went on a little research expedition and asked some friends for their input. I read through the Civil Rights Act, twice. And no, the three criteria are not spelled out as succinctly as my talking point. If I were a lawyer I would do the legal jujitsu of trying to show how all of that is present in the act. But, I am not. Thank goodness there is a LOT of American case law and other lawyers who make that talking point valid even though I tried to pin it all on the Civil Rights Act.
First I found this at Leadership U.
Historically, courts and civil rights authorities have employed three “touchstones,” in awarding protected class status to groups of people who…
- As an entire class have suffered a history of social oppression evidenced by lack of ability to obtain economic mean income, adequate education, or cultural opportunity.
- As an entire class exhibit obvious, immutable, or distinguishing characteristics, like race, color, gender or national origin, that define them as a discrete group.
- As an entire class clearly demonstrate political powerlessness.
(Cf. “Frontiero vs. Richardson,” 411 U.S. 677,684-687, 93 S.Ct. 1764, 1769-70, 36 LED 2nd Ed. 583, 1973; “San Antonio Independent School District vs. Rodriguez,” 93 S.Ct. 1278, 1293, 36 LED 2D16, 1973; “Massachusetts Board of Retirement vs. Murgia,” 96 S.Ct. 2562, 2566, 49 LED 2D520, 1976; “Plyler vs. Doe,” 457 U.S. 202, 216, N14, p. 219-223, 102 S.Ct., 2382, 2394, N14, 2395-2397, 1982; “City of Cleburne vs. Cleburne Living Center,” 473 U.S. 432, 440-441, 105 S.Ct., 3249, 3254- 55, 87 LED P2D, 313, 1985; restated also in “Jantz vs. Muci,” March 29, 1991, 759 Fed. Supp. 1543.) This means not all “minorities” are eligible for protected class status.
Also, a friend sent me a document written by Jan LaRue who is a lawyer who once worked with CWFA. You can find the article online here. LaRue is writing specifically about marriage but the lessons hold true anywhere that gay identified activists try to use “Civil Rights” language. On Pages 8 and 9 Section E she writes:
E. Is homosexuality an absolutely immutable characteristic—a prerequisite for heightened civil rights protection?[1]
Sexual orientation never has been included as a “suspect class” for equal protection analysis, nor has a “right to same-sex marriage” ever been classified as “fundamental” for purposes of due process analysis under the 14th Amendment to the U.S. Constitution. No court has ever extended the “fundamental right to marry” to a fundamental right to marry any person whatsoever. Limiting marriage to a man and a woman has nothing to do with arbitrary and invidious discrimination against homosexuals. Heterosexuals are equally prohibited to marry a person of the same sex even though they could claim the same need to obtain benefits and legal protection for a needy relative or friend, as homosexuals claim as a need. Limiting marriage to a man and a woman does not discriminate on the basis of sex or sexual orientation.
Furthermore, to qualify as a suspect class, a group must meet what the courts have recognized as the “traditional indicia of suspectness.”[2] It must “have been subjected to discrimination,” must “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group” and be “politically powerless.”[3]
The Supreme Court has consistently identified as immutable characteristics such things as “race, gender, or ethnic background”[4] and “height or blindness.”[5] As such, the only classes recognized by the Court as “suspect” are race,[6] alienage,[7] and ancestry.[8] Central to each are the “obvious, immutable, or distinguishing characteristics that define them as a discrete group.”
Lower courts have held, as the Court implied in Romer v. Evans, 517 U.S. 620 (1996), that homosexuals are not a suspect class for equal protection purposes. The Ninth Circuit, for example, concluded that “[h]omosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from such traits as race, gender, or alienage.”[9]
Jeffrey Satinover, M.D., a psychiatrist who counsels homosexuals seeking help, rejects the immutability claim: “We will see later the falsity of activists’ repeated assertions that homosexuality is immutable. They seek to create the impression that science has settled these questions, but it most certainly has not. Instead, the changes that have occurred in both public and professional opinion have resulted from politics, pressure, and public relations.”[10]
In addition, the facts of modern American society demonstrate that homosexuals do not meet the Court’s definition of a suspect class. An extensive National Journal analysis concluded, “gays and lesbians have achieved unprecedented acceptance in America.”[11]
The proliferation of anti-discrimination laws that include sexual orientation demonstrates that “homosexuals are not without political power.”[12] Homosexual political action committees and activists raise millions for political candidates.[13] A spokesman for the National Gay & Lesbian Task Force told a September 2000 event: “The Gay vote is large, powerful, and able to swing a closely contested election.”[14] The National Journal found that homosexuals “use their clout and their dollars to shape laws and social policy.”[15]
Open homosexuals are being elected to legislatures[16] and courts[17] and appointed to be U.S. ambassadors.[18] According to a leading homosexual publication,[19] significant events during 2002 alone include:
· “The first openly gay candidate to be selected to run with a sitting U.S. governor.”
· The majority leader of the Maryland House of Delegates became “the state’s first legislator to come out of the closet.”
· “The American Academy of Pediatrics officially endorses adoption by gay people.”
· “The … National Education Association adopts a policy asking school districts to protect gay and lesbian students and staff members.”
· “Newspapers nationwide, including, most significantly, The New York Times began running same-sex union announcements.”
· Homosexual activists saw only one “Election Day ballot measure defeat” last year.
· “The first openly gay mayor of a U.S. state capital.”
Homosexual activist groups claim increasing influence over many aspects of American culture and politics. The Gay & Lesbian Alliance Against Defamation (GLAAD) claims to have “changed the way lesbians and gay men are portrayed on the screen and in the news” and to be “a major source of resources and information for entertainment and news media decision makers. Entertainment Weekly has named GLAAD as one of Hollywood’s most powerful entities.”[20]
Groups such as the National Lesbian and Gay Journalists Association,[21] Gay and Lesbian Medical Association, National Gay and Lesbian Chamber of Commerce, National Organization of Gay and Lesbian Scientists and Technical Professionals, Servicemembers Legal Defense Network, and the Gay, Lesbian & Straight Education Network are a few of the homosexual organizations targeting specific sectors of society.
A recent GLAAD report claimed, “in mainstream and gay media gay consumers are becoming big business.”[22] According to Online Partners, owners of the Web portal gay.com,[23] homosexuals represent a $450 billion market.[24] The Miami Daily Business Review reports that homosexuals have “extraordinarily high disposable income, and are very attractive targets for advertisers.”[25]
[1] See Brief of Amicus Curiae of Concerned Women for America in support of Respondent, United States Supreme Court No. 02-102, Lawrence v. Texas, Janet M. LaRue, Counsel of Record and Thomas L. Jipping.
[2] San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28 (1973).
[3] Bowen, 483 U.S. at 602. See also Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313; San Antonio Independent School District, 411 U.S. at 28.
[4] See, e.g., Holland v. Illinois, 493 U.S. 474,496 (1990); Lockhart v. McCree, 476 U.S. 162,175 (1986).
[5] Cleburne, 473 U.S. at 472.
[6] See Loving v. Virginia, 388 U.S. 1 (1967).
[7] See Graham v. Richardson, 403 U.S. 365 (1971).
[8] See Korematsu v. United States, 323 U.S. 214 (1944).
[9] High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563,573 (9th Cir. 1990). See also Ben-Shalom v. Marsh, 881 F.2d 454,464 (7th Cir. 1989); Woodward v. United States, 871 F.2d 1068,1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97,102 (D.C. Cir. 1987).
[10] Jeffrey Satinover, M.D., Homosexuality and the Politics of Truth (Grand Rapids, Michigan: Hamewith Books, Baker Books, 1996), p. 38. See Robert Knight, “Born or Bred? Science Does Not Support the Claim that Homosexuality is Genetic,” (Washington, D.C.: Concerned Women for America, March 2004).
[11] Shawn Zeller, Marching On, but Apart, The National Journal, 12 January 2002.
[12] High Tech Gays, 895 F.2d at 574. Last year alone, according to a leading homosexual publication, Connecticut extended legal rights to same-sex couples and cities prohibiting discrimination against homosexuals included New York City; Takoma, Washington; Dallas, Texas; Westbrook, Maine; Chicago, Illinois; Baltimore, Maryland; and Orlando, Florida. “News of the Year; 2002 Time Line,” The Advocate, 21 January 2003.
[13] See Lou Chibarro, “A Hard Line On ‘Soft Money’” The Washington Blade, 3 August 2001.
[14] Quoted in Lisa Keen, “Groups Tout Clout,” The Washington Blade, 22 September 2000.
[15] See, supra, note 55.
[16] The U.S. House of Representatives now has at least three openly homosexual members.
[17] See Lisa Krieger, “Judicial Election Shatters Barrier; First Gay Elected to Superior Court,” San Francisco Examiner, 28 March 1996, at A-9.
[18] President Clinton appointed James Hormel to be Ambassador to Luxembourg and President Bush has appointed Michael Guest to be Ambassador to Romania.
[19] News of the Year, supra note 66.
[20] GLAAD, “Our History,” available at http://www.glaad.org/about/history.php.
[21] At an NLGJA event on April 12, 2000, longtime member Richard Berke, national correspondent for The New York Times, said, “Literally three-quarters of the people deciding what’s on the [The New York Times’] front page are not-so-closeted homosexuals.” See Peter LaBarbera, “Just How ‘Gay Is The New York Times,” available at http://www.cultureandfamily.org/articledisplay.asp?id=3249&department=CFI&categoryid=cfreport.
[22] Katherine Sender, “Business, not Politics: Gays, Lesbians, Bisexuals, Transgender People and the Consumer Sphere” (New York, New York: GLAAD Center for the Study of Media and Society, 2002), at 4.
[23] Online Partners boasts that “According to DoubleClicks @plan research, Gay.com is the #1 site on the Internet in reaching single men with household incomes over $100,000,” http://www.onlinepartners.com/pages/market.html.
[24] Selig Center for Growth, University of Georgia, available at http://www.onlinepartners.com/pages/market.html.
[25] Marcia Philbin, “Branching Out,” Miami Daily Business Review, 6 October 2000, p. A13.
Jan is pretty tough huh? She’s a lawyer … they can be like that 
. I’ve met her in person and she is a very dear and funny person.
So, yes, my “three criteria” talking point was simplistic but they did come from legitimate reasoning and court decisions. The “touchstones” actually make it even more difficult for the gay identified community, as an entire class, to seek protected class status.
Speaking of three things, there are three things that need to be stated before I end this post.
1.) I believe everyone deserves the same basic civil and inalienable rights as any one else. Everyone should be afforded dignity and respect. NO ONE deserves or should have to endure violent crime.
2.) While there are issues that the gay identified community believes they must act on and change, to couch them in Civil Rights language is disingenuous. I do believe that there are real issues but to frame them incorrectly and seek to mollify them through public policy hasn’t and won’t work. Everyone is fighting over public policy when the real issues underlying the clashing world views never get addressed and people are not grateful for what they truly do have.
3.) I am not a lawyer and this is about as detailed as I am going to get on gay issues being contextualized as Civil Rights.
People accuse me of trying to attack or bash the gay community by pointing the above out and that is simply not true. I am trying to combat buzzword laden arguments so that we can all press toward the core issues. I know that I am just as guilty as the next blogger of relying too heavily on talking points in general discourse, but when they are true… they are true… when they are not, they need to be dropped and recognized as not true or readjusted to be true . My three criteria are true in the grand scheme of American case law, but couching gay cultural and social issues as Civil Rights is not.
Let’s talk about crime against gay people. Let’s talk about the reality of “ex-gay” people like myself. We can talk all day about redefining marriage, why Rosie seems to be so weird and the cultural implications of kindergarten children learning about gay princes, but the moment any of this turns into “Civil Rights” language, that is the moment we are no longer contextualizing accurately.
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