A Good Definition/Categorical Argument
Before you write one, we’ll want to review the qualities of a good Definition/Categorical argument.
1. It’s an argument.1
I’ve told you before that all writing is argument, but now is always a good time to remind you. Our intuition might tell us that a Definition Essay is a simple stating of the facts of what a thing is or isn’t. But if that were true, we’d hardly need lawyers at all. Whole libraries have been filled with arguments about whether a particular judicial process is or is not an example of “due process” or “equal protection under the law.” Those categories sound clear enough, but deciding whether individual cases qualify as members of the class is always up for debate.
2. It has real-world relevance.
The dictionary is almost useless in defining what words and concepts mean in society. Because the model essay below is about gay marriage, I looked up the definition of marriage in a 1993 dictionary and found it quite helpless. In several entries, it sometimes refers to unions of husband and wife; sometimes to a special social and legal relationship between men and women for the foundation of a family; sometimes merely to an intimate or close union.
None of these will help us legislate whether same gender marriages should be permitted because, as a society, we get to decide what constitutes a “special social and legal relationship” and who can make one, just as we get to decide what constitutes “the foundation of a family.” After all, we don’t take away the marriage licenses of couples who don’t procreate, even by choice.
3. It often requires defining several terms.
In the above, we need to clarify not just marriage, but social relationship, legal relationship, and family. In the model below, our quest to define the rights of gays seeking to marry sends us in search of good definitions for
- protected class,
- insular minorities,
- laws based on gender,
- laws based on sex,
- invidious discrimination,
- defining characteristics,
- political vulnerability, and
- fundamental nature.
After all that, the model below still doesn’t define marriage, let alone gay marriage. It doesn’t try to. It doesn’t say gay marriage should be embraced. It doesn’t say gays are entitled to all the privileges and considerations of marriage. Its narrower argument is that, whatever gay marriage is, gays belong to a class of citizens entitled to special consideration to determine whether depriving them of the right to marry is unconstitutional.
And that’s a worthwhile definition essay!
In red below are the specific claims relevant to a definition of a protected class that deserves heightened scrutiny and the argument that gays seeking to marry belong to that class.
New York Times Editorial
March 23, 2013
One of the central questions in the two gay marriage cases to be argued before the Supreme Court this week is whether gays and lesbians are a protected class under the Constitution. Under longstanding principles, government actions that fall heavily on “discrete and insular minorities” historically subject to prejudice and stigma are to be given particular scrutiny.
The 3.4 percent of Americans who identify as gay, lesbian, bisexual and transgender clearly qualify as this kind of minority. Laws classifying individuals based on sexual orientation — the anti-gay-marriage initiative in California called Proposition 8 and the federal Defense of Marriage Act — must be given heightened scrutiny.
Justice Ruth Bader Ginsburg, then the foremost advocate for gender equality, swayed the court 40 years ago to adopt that standard for gender-based distinctions. The court concluded “that classifications based upon sex” were “inherently suspect.” But it has not yet decided how to treat laws based on sexual orientation. The solicitor general and others argue persuasively that such laws require close review just as those based on gender do.
The United States Court of Appeals for the Second Circuit struck down the Defense of Marriage Act for defining marriage as between a man and a woman. The appeals court convincingly found that in focusing on sexual orientation, the act warranted heightened scrutiny under the test the Supreme Court established for gender-based laws — and that the statute was unconstitutional when reviewed closely. The test considers whether members of the group have experienced invidious discrimination; whether individuals can leave the group without losing a basic part of their identities; whether the group’s defining characteristic is relevant to its ability to contribute to society; and whether members can protect themselves in the political process.
Gays, lesbians, bisexuals and transgender people share a common “immutable” characteristic because their sexual orientation is fundamental to who they are and they have indisputably been discriminated against. Until a decade ago, the Supreme Court upheld state laws making “private sexual conduct” between people of the same sex a crime. In the five most recent years for which the government has data, through 2011, hate crimes in the United States fell by 19 percent. But hate crimes based on sexual orientation went up by 3 percent. The discrimination has nothing to do with the ability to contribute to society.
Finally, gays and lesbians, as a minority group, cannot protect themselves from discrimination in a political process governed by the majority. If they had power, Proposition 8 and the Defense of Marriage Act would never have passed, nor would the laws currently on the books in 39 states that specifically restrict marriage to opposite-sex couples.
As the brief for the United States said in the Defense of Marriage Act case, “This is the rare circumstance in which a faithful application of the court’s established criteria compels applying heightened scrutiny to an additional classification.” Neither of the laws in the two cases before the court can withstand this serious constitutional examination.
Question for You
Name 3 ways in which lesbians, gay men, bisexuals, and transgender Americans are considered a protected class that deserves heightened scrutiny.