Thursday, March 5, 2009

Can Gay rightists claim civil rights' protection?

In a recent comment to one of the past posts, Euripides stated and asked: "Blacks and women have a substantive claim to discrimination based on economic and social inequities and have gained civil rights protections as protected classes. So is it correct that gays have no claim to civil rights, having no substantive claims to discrimination. Or is it that gays, as a group don't have the necessary self-definition to create a "class"?"

The answer is both because the issues are interrelated. However, the question is slightly mis-stated. In order to claim protection under the U.S. civil rights statutes, an individual must be a member of a protected class. The issue is whether any particular individual qualifies as a member of the class. If a person is racially an African-American, membership in the protected class of race is a given. But, in another example, if the protected class is a religion, the claimant may have to prove that they are actually member of a qualifying religious group or organization. There are large numbers of cases in which the Federal courts address the membership in the protected class issue.

The major problem with the claim to membership in a protected class for someone who claims to be gay, is that there is no legal definition of the class. The California Court cases are no help in this regard. The California Courts have made no attempt at defining who is or who is not entitled to protection. As it stands right now, anyone, with any basis whatsoever, can claim to be gay and therefore a member of the protected class. The law cannot allow someone to define themself into a protected class, especially when there is no consistent legal definition of the class at all.

Discrimination only exists as to protected classes. For example, age can be a factor in a discrimination claim, but a 15 year old cannot claim discrimination on the basis that only 16 year olds can drive. If there is some rational reason or explanation for the apparent discrimination, then, by law, it cannot be unreasonable and therefore cannot be the basis for a lawsuit. Again, there are hundreds, likely thousands of cases testing this issue of who can claim discrimination.

If you cannot define the class, you cannot claim discrimination based on the undefined class.

1 comment:

  1. Thanks for the clarification and the blog. Hopefully, this will help others to understand what's at stake with gays and class definition.