Fact Two: SCOTUS is currently trying to decide two cases related to same-sex marriage, one on DOMA and one on California’s Prop 8.
These are essentially discrimination cases. The claims center on the fact that it is discriminatory to forbid same-sex marriage. But if you think about it, we discriminate everyday; otherwise, there could be no criminal or non-criminal, no good or bad. Discrimination is not, of itself, wrong. It is only wrong to discriminate in certain situations. Legally, these “certain situations” are defined as a “protected class.”
So, what are the protected classes in the United States? Wikipedia (linked above) provides a list.
- Race – Federal: Civil Rights Act of 1964
- Color – Federal: Civil Rights Act of 1964
- Religion – Federal: Civil Rights Act of 1964
- National origin – Federal: Civil Rights Act of 1964
- Age (40 and over) – Federal: Age Discrimination in Employment Act of 1967
- Sex – Federal: Equal Pay Act of 1963 & Civil Rights Act of 1964
- Familial status – Federal: Civil Rights Act of 1968 Title VIII (Housing, cannot discriminate for having children, exception for senior housing)
- Disability status – Federal: Vocational Rehabilitation and Other Rehabilitation Services of 1973 & Americans with Disabilities Act of 1990
- Veteran status – Federal Vietnam Era Veterans Readjustment Assistance Act of 1974
- Genetic information – Federal: Genetic Information Nondiscrimination Act
Now, examine that list of characteristics carefully. It can be divided into two categories. Let’s call one “Attributes” and the other “Choices.” Attributes are those characteristics that we have no control over – they are essentially accidents of birth. So, the protected classes in the category of Attributes would be, race, color, national origin, age, sex, disability and genetic information.
Choices as a category is a different matter. These are characteristics over which we as individuals do have control. The characteristics on that list that fall into this category are religion, familial status, and veteran.
Now the first thing we have to ask ourselves is if they we are to judge same sex marriage as discriminatory, into which category would we fit homosexuality? This is where Jason Collins comes in. Jason Collins is an identical twin:
Something in the media guides did not compute.
Jason Collins is listed at 7-0 and 260 pounds in the New Jersey Nets media guide, while the Utah Jazz media guide lists twin brother Jarron at 6-11 and 255. Aren’t they identical twins?
Yes, responds Portia Collins, the mother of the first set of identical twins to play in the NBA since Harvey and Horace Grant.
So, is Jason taller than Jarron?
After a bemused pause, the answer we knew was coming finally arrived: “Noooo.”
“They filled out questionnaires and have a media archive at their respective schools [high school and Stanford University]. Jarron and Jason let it continue. I don’t think they let it bother them.”
Late last summer Jason called and said that he was coming over because he had something to tell me. This was nothing new. We speak multiple times a day, always have. He’s Tio Jason to my three kids. He’s like a brother to my wife. He’s my twin, eight minutes older. We live only a few miles apart on the west side of L.A. But while most of our conversations are quick and light, this one was different.
So, here we have two men, genetically identical, that grew up together, were afforded all the same opportunities, went to high school and college together. They seem as close as brothers can be. Yet one is homosexual and one is heterosexual. Clearly then, Jason’s homosexuality is a choice, or perhaps a series of small choices over the course of many years, but it is certainly not an Attribute, as we defined it above.
Many are the claims that homosexuals are “just born that way.” How many times have I heard, “That’s just the way I am.” Well, clearly it is not, as so well illustrated by the Collins twins. Physically identical and walking nearly identical paths until well into adulthood, one made choices that lead to a traditional lifestyle and the other made choices that lead down the path that was exposed yesterday.
Jason Collins “coming out” should make it crystal clear to SCOTUS that if they are to award “protected class” to homosexuals it will be in the Choices category, not the Attributes one. But examine carefully that short list in the Choices category. Religion is set aside as a protected class within the body of the constitution proper, and it is plain letter in the Bill of Rights. Veteran only makes sense – this is another means of honoring those that have served the nation at the highest risk. It seems commonsense enough.
Familial status is where the rub lies. But note, this is not an absolute when it comes to the protections. The protections are limited purely to housing matters and furthermore, there are notable exceptions. While it could be argued that same-sex marriage is, in some sense, a “familial status,” it falls so far outside the existing protection limits as to make it plain to the court that they will be creating a whole new protected class should they go that direction with these cases.
Does the court have the power to create a protected class? Note that each of the classes on the list above were created by legislative action, as cited. When it comes to Attributes, it could be argued that the court might create, and/or expand a category based on “…the separate and equal station to which the Laws of Nature and of Nature’s God entitle them…,” in the Declaration of Independence. But as the case of the Collins twins makes so transparent – this is no Attributes situation.
The Court has little choice but to leave existing law in place. These are choices by the individuals involved and how to deal with such people is a choice for the people generally. That is why there are elections and legislatures. If the Court decides otherwise, it will be a clear and undeniable usurpation of power. It would be a tyrannical act.