Tuesday, March 3, 2009

Gays a protected class?

In order to make a claim for a violation of a civil right, it is necessary to establish that a person belongs to the protected class. There are literally thousands of Federal Court cases involving the issue of the definition of a protected class and whether or not a specific person is a member of that class. For example, during the deliberations that preceded the enactment of the Civil Rights Act of 1964, Congress considered and rejected proposed amendments that would have included older workers among the classes protected from employment discrimination. Thereafter, the Fair Labor Standards Amendments of 1966, Pub. L. 89-601, Section 606, 80 Stat. 845, and in 1967, 29 U.S.C. Section 623 (a) (2) added provisions extending protection to individuals' employment opportunities from discrimination because of age. Therefore, in the narrow area of employment discrimination, age became a "protected class." See Smith v. City of Jackson, Miss., 544 U.S. 228, 125 S. Ct. 1536 (U.S. 2005).

Additionally, to state an equal protection claim in the context of a discrimination suit based on claimed civil rights, a plaintiff must prove that he or she was discriminated against by establishing that other similarly-situated individuals outside of his protected class were treated more favorably. See Amnesty Intern., USA v. Battle, --- F.3d ---, 2009 (Case has yet to be formally reported). Fundamentally, the person making a claim must prove that they are a member of the protected class.

Presently, there are possibly hundreds, if not thousands, of individuals claiming that they are members of a protected class and attempting either through legislation or through the courts, to establish that they are entitled to civil rights standing and protection. 42 U.S.C.A. Section 2000 et seq. establishes that as a prerequisite to any of these actions, the individual must prove membership in a protected class.

Clearly, under the existing law in the U.S., no one can automatically argue that they are entitled to some type of civil right without a basic consideration of the person's qualifications and membership in the supposed protected class. See Laderach v. U-Haul of Northwestern Ohio, 207 F.3d 825, C.A. 6 (Ohio) 2000. The plaintiff always bears the initial burden of establishing a prima facie case of disparate treatment based on race, religion, national origin, sex or age by introducing evidence that gives rise to an inference of unlawful discrimination. See Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104 (9th Cir. 1991).

As Euripedes, pointed out in a recent blog, about Gays the Hijacking of Civil Rights, "If gays can claim protection, based solely on association as a member of the gay class, then anyone can make the same claim and there are no standards of protection for any other protected class. " How does one go about proving they are a member of a class that has no accurate definition and no criteria for membership? Again, referring to Euripedes, "The slippery slope exists when other people group themselves together and begin to claim protected class status for the most frivolous of claims. " For example, if a person is the subject to same-sex attraction, but never acts out any of their feelings, is that person entitled to class protection as a "Gay?" What about the commonly argued situation where two people of the same sex live together but are not sexually involved at all. Are they also a member of this protected class of "Gays?"

It is apparent that the argument in California over Proposition 8 has jumped over this fundamental issue and made an invalid assumption that a protected class exists without ever defining that class. Class definition is not difficult in the instance of race, or sex (i.e. women vs. men) but has been and will continue to be problematical for national origin and religion. Are we ready to include a class that does not have a definition? Won't that open the door to almost any possible group or preference labeling themselves and claiming protected class status?

Constant repetition of the mantra of "gay rights" does not automatically create a protected class, unless there is some rational way of defining the class other than by someone claiming membership. To do otherwise, destroys the whole concept of civil rights in America today.


  1. Thank you so much for this info! I am always interested in all things legal with this SSM marriage drama. I find the whole thing astounding that homosexuals really think that America should acknowledge them as a protected class so they can continue to parade their immorality in front of everyone without fear of retribution.

  2. 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"?