Classifying

Behaviors



   You can turn any behavioral predisposition or inclination into a class.  Gayness now wants to be a class for protected status purposes. People who like to have sex backwards as some say or People who like to have sex with people with parts like theirs. The slippery slope off a cliff is if you start classifying all behaviors however objectionable as protected status where does that end? People who love to sing loudly on the metro - can that be a protected class so its legal discrimination if we regulate that they not be allowed to sing loudly on the metro during rush hour (simply because it annoys the heck out of others)

    How about alcoholics. A percent of the country is a minority -they are alcoholics. Are we discriminating against them when we arrest people for drunk driving? They are always disproportionately affected or impacted (disparate impact analysis). How about left handed people.
Are we discriminating against the class of left handed people when casinos put the lever of slot machines on the right? Should left handed people be a protected class. Should people who don't eat pork be classed as a protected class on that basis. All people of whatever religion who do not eat pork are a protected class- therefore all the hot dog vendors who do not also have kosher beef alternative hot dogs in New York can now be sued for discriminating against that protected class for only serving pork filled hot dogs.

    Theologians and religiously defined people have arguments about the sanctity of marriage and preferences for different genders raising kids. I am not in the 'who'se holier' game and leave those arguments to those soliciting your charitable contributions. I am just a lawyer.The legal arguments surround whether constitutionally any group with any behavioral preference should be allowed protected status because they want it so for any behavioral issue they should get it like everyone else.

   Discrimination law is tricky this way- This is unchartered legal waters in fact and never before have we given 'protected class status' to anyone for behavioral preferences.  Acting out sexually gay is not the same thing as being born black and only a fool would conflate the two logically.

   When the matter of Loving v. Virginia was decided in which a black woman and white man wanted legal marriage for themselves the court created a constitutional right to marriage in that case for one man and one woman and nothing in the case made it a fundamental right for every human being or even every adult. The point lambasted during the campaign was that if you extend the right to every human you then have to examine the carved categories  and say some adults should but some adults should not have the right to marry. For example, now we already have preclusionary laws in which some adults are not allowed to marry each other, e.g. incest, polygamy, and marrying minors. Those laws would be similarly subject to challenge if people with behavioral preferences get to turn their preferences into class status. The preclusions against marriage now are for people who have sex backwards or with people with the same parts (euphemistically and you know what I mean), polygamy, incest, underage, bestiality, etc. We now want to make one category a protected class status- there then is no logical basis to not create protected class status categories of any other behavioral preference- no matter how odious it may appear to other people, or even the majority of people in the country.

     Legally there would be solid constitutional ground to find that 'marriage equality' is not necessarily constitutionally mandated for people who wish to have sex backwards, or sex with people of their same parts --because there is no constitutional requirement to turn behavioral preferences into class status.

The only thing that comes close now in discrimination law to protected class status for behavior is the anti-discrimination against religion and religious practices law(s). That clearly finds that acts of religious worship enjoy protected status. So to find that institutional gay sexual activity is the sort of activity that should enjoy protected status finds it is more similar to religious protected behavior than blackness, gender or the place of one's birth or national origin.  Such a result works a twisted conclusion that even the most ardent gay paraders might find hard to swallow.

    Are we discriminating against the class of all alcoholics when we arrest drunk drivers. And there is no end to that tale of reductio ad absurdum --  unless you find that gay sexual expression can be protected as a religion.

    The welfare of children, something Justice Kennedy seemed concerned with falls more, in my view with the ability of any adult to house orphans because we should want them in loving homes of any adults rather than in orphanages or in the unstable world of transient foster care. Then there is the matter of the children already being raised by gay parents who as children don't definitionally enjoy the same status of legitimacy because their parents are not married and it seems brutally unfair to penalize children thusly.  Will that outweigh the logical constitutional difficulty?  I can't wait to find out.

(the author Cynthia L. Butler has practiced Title VII discrimination law for over a decade in several jurisdictions as a federal litigator)