Heightened Scrutiny

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

Heightened Scrutiny

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 concludedthat 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.

16 Responses to Heightened Scrutiny

  1. stripedsweater21 says:

    Those in the LGBT community are a protected class because
    -They cannot choose their sexuality; they may sometimes be ashamed of how their personality is, even though they don’t have control over their personality preferences.
    -They are a minority and therefore are prejudiced against- they are judged and criticized by many(not all, and more awareness and respect is being given)
    -Because they are a minority, if one were to be a victim of discrimination, it is really difficult and disheartening for them and makes it hard for them to fight against the discrimination.

  2. j6128 says:

    1) 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.
    2) gays and lesbians, as a minority group, cannot protect themselves from discrimination in a political process governed by the majority.
    3) hate crimes based on sexual orientation went up by 3 percent.

  3. dancestar10 says:

    Three ways that the LGBTQ are protected is by defense marriage act, laws and the constitution

  4. nayr79 says:

    1. Sexual orientation is not a choice and a characteristic of a human that is inescapable. This calls for more attention to be had when designing laws based around sexual orientation.
    2. LGBTQ+ people have been largely discriminated against for a long time, giving them an edge in how detailed and clear a law may be.
    3. This is a minority group that can be legally outweighed by the majority. The majority will cater to the majority as it usually does.

  5. bmdpiano says:

    1. They all share the characteristic of not being able to chose to leave this group of people. If they were to, they would lose a basic part of their identity.
    2. Their identity is not a defining characteristic for weather they can contribute to society or not.
    3. They cannot protect themselves from discrimination in a political process.

  6. alyse816 says:

    Since the justice system has not yet totally decided to treat laws based on sexual orientation, then the members are considered protected, because they have not yet been denied. The appeals court has been fighting the argument for them and found that it is unconstitutional to deny them. They cannot protect themselves in political discrimination, so they have called upon others of higher statue to help them fight the unjustness.

  7. walmaarts says:

    1. Gays, lesbians, bisexuals and transgender people share a common “immutable” characteristic because their sexual orientation is fundamental to who they are
    2. Gays and lesbians, as a minority group, cannot protect themselves from discrimination in a political process governed by the majority
    3. Hate crimes against the LGBTQ community.

  8. sixers103 says:

    3 ways the people in the LGBT community are a protected class are that they are a minority in the population and therefore must be given heightened scrutiny. Second, the people of the LGBT community are extremely discriminated against which really makes it difficult for a person to be themselves around others. Finally, a person has a basic identity no matter what they are gender wise or what they are sexuality wise which allows for a person to no lose as part of their identity if they decide to leave a specific group.

  9. a1175 says:

    -they are considered a protected class because they cannot protect themselves from discrimination in the political eye
    -the discrimination has nothing to do with them contributing to society
    -they share a common “immutable” characteristic because their sexual orientation is apart of who they are and they are discriminated against

  10. shaquilleoatmeal2250 says:

    1. Hates crimes by sexual orientation went up by 3 percent which shows they cannot keep away from discrimination
    2.They cannot control the sex they are born as and the thoughts they go through. They don’t get to choose so it’s not fair for them.
    3. Since they are a minority group they cannot avoid all discrimination. It’s not their choice to be the minority it’s just how they were born on this earth

  11. rose1029 says:

    1. Gays, lesbians. transgenders and bisexuals are undoubtedly human beings who contribute to society just as well as cisgender people. “The discrimination has nothing to do with the ability to contribute to society.”
    2. Gays, lesbians. transgenders and bisexuals are considered a minority group because their fates are being decided by the greater group of cis-gendered people. “Finally, gays and lesbians, as a minority group, cannot protect themselves from discrimination in a political process governed by the majority.”
    3. This specific group of people faces hate crimes and since their sexuality and gender identification cannot be something they can change, they have to face hate crime from the mass majority and they cannot avoid this.
    “But hate crimes based on sexual orientation went up by 3 percent.”

  12. samtheman1448 says:

    1. The people in the LGBT community are protected because they cannot choose their sexuality. It is not something that they can change and it is simply part of who they are.
    2. The LGBT community only makes up around 3 percent of the country so they are considered a minority. Many people disagree with being gay or lesbian so there are hate crimes against them.
    3. The LGBT community does not have much power. They cannot protect themselves so they need to be a protected class.

  13. taxmanmaxwell says:

    1. Historically people identifying as LGBT have been targets of discrimination.
    2. People in the LGBT community are considered to have an immutable characteristic in that they do not get to chose their gender or sexual orientation.
    3. As a group consisting only roughly 3.4% of the population members of the LGBT populace do not have the ability to easily defend themselves democratically.

  14. omgmafia says:

    LGBTQIA+ community is considered a protected class because they qualify as “discrete and insular minorities”. Marriage was defined between man and woman, but since it has not been decided how to treat laws of sexual orientation, scrutiny has been heightened. Lastly, the LGBTQIA+ community is considered protected class because presenting themselves as a lesbian, gay man, bisexual, or transgender, etc. is a part of their identity, and they cannot protect themselves from discrimination.

  15. gossipgirl3801 says:

    1. One way the LGBTQ are considered a protected class is because they are a minority.
    2. The second way LGBTQ are considered a protected class is because they have people advocating for them and making laws to protect them.
    3. A third way LGTBQ are considered protected is they cannot defend themselves because they are not high up enough.

  16. harp03 says:

    Three ways people of the LGBTQ community are considered a protected class:

    1. They have no ability to choose their sexual orientation, as they “share a common “immutable” characteristic because their sexual orientation is fundamental to who they are”.
    2. They are heavily discriminated against, and hate crimes have only increased based on sexual orientation through 2011, whereas hate crimes (in general) have decreased
    3. They are considered a minority because only 3.4% of Americans classify as gay, lesbian, bisexual, and transgender. Therefore, they must be protected because they “lack numbers”, or people, supporting them.

Leave a Reply to taxmanmaxwell Cancel reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s