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Special Class Protections for Self-Alleged Gays: A
Question of "Orientation" and Consequences
A public policy analysis
by Tony Marco
Copyright Tony Marco, 1991-1994, all rights
reserved
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Protected Class Status for Gays Unwarranted Under All Three
Traditional Criteria
The first question we must consider is this: Do gays, as a group linked
solely by shared sexual behavior (or alleged desire), warrant protected
class status by any criteria which have given that status to legitimate
ethnic groups? 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. Top corporate executives, for example, are definitely
a "minority" in America. Yet they are obviously unqualified under the
above criteria, because, if organized, they would represent a
special interest group, not a true minority. Other groups,
such as disadvantaged African Americans, rightly qualify for protected
class status. Let's consider whether gays as an entire
class warrant protected class status in light of each of these
criteria.
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© 1995-2008
Leadership U. All rights reserved.
Updated: 13 July 2002
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