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About Just out. (Portland, OR) 1983-2013 | View Entire Issue (Sept. 2, 1994)
ju s t o u t ▼ s o p torn b or 2 , 1 9 9 4 ▼ 9 LEGAL Debunking the lies Right wing groups use the myth o f “minority status” to push discrimination ▼ by Arlene Zarembka he premise of the newest right wing video, Gay Rights/Special Rights, is a lie: that there is something in the law called “protected minority class sta tus.” That lie leads to another one: that only those classifications that have been found by the Supreme Court to be constitutionally “sus pect” under the Equal Protection Clause (what the right wing erroneously labels "protected minority class status”), and therefore subject to close scru tiny by courts, can be included in civil rights laws. The “protected minority class status” phrase is simply an adroit double-entendre designed to inflame passions. On the one hand, the right wing uses the phrase to drive a wedge between queers and other oppressed groups, arguing that dis crimination against people of color is “status- based,” whereas discrimination against gay men and lesbians is “behavior-based.” In fact, most discrimination and violence against gay men, lesbians and bisexuals occurs because a person is or is thought to be queer, and not because of any behavior. On the other hand, the video uses the "protected minority class status” phrase to undermine European American sup port for civil rights protec tions in general, by falsely claiming that laws give people of color some sort of “special rights and privi leges,” “advantages,” and “elevated status.” There simply is no le gal meaning to the phrase “protected minority class status,” or to the shorter phrase found in many dis crim inatory initiatives, “minority status.” Civil rights laws provide rem edies for various types of discrimination, regardless of whether the victim of illegal discrimination is a member of a group that is statistically in the minority. Race and color discrimination suits are not limited to those who belong to groups that are a statistical minority in the population. Persons of any color or race, including European Americans, may file a claim of discrimination if they have suffered discrimination because of color or race. Both men and women may file claims of sex discrimination, even though women are statisti cally in the majority. Likewise, people of any religion, or no religion at all, may file claims of religious discrimination. Similarly, where civil rights laws prohibit discrimination based upon sexual orientation, persons of any sexual orienta tion—heterosexual, bisexual, lesbian or gay— may file claims of sexual orientation discrimina tion. In short, civil rights laws do not confer “mi nority status” on anyone, nor are they limited to protecting only members of minority groups from discrimination. Although most civil rights laws originated from the discrimination experienced by members of minority groups (with the excep tion of sex discrimination laws, which evolved from discrimination faced by women, who are a majority), they provide everyone with protection from discrimination based on a category of dis crimination (e.g., race, color, sex, religion). Any one, even if a member of a majority group, can file a claim if subjected to discrimination based on a characteristic that is protected from discrimina tion. The video then uses the bogus concept of T “minority status” to argue that queer rights legis lation should not be passed, because gay men. lesbians and bisexuals do not fit the criteria for what it calls “protected minority class status” under Supreme Court Equal Protection analyses. In framing the debate in this fashion, the right wing first deftly distorts Supreme Court decisions on the Constitution’s Equal Protection Clause. Then it confuses judicial interpretations of the Equal Protection Clause with the powers of legis lative bodies. The Equal Protection Clause does not grant anyone “protected minority class status." The Equal Protection Clause of the U.S. Constitution sets limits on the ability of legislative bodies to discriminate against people. It does not restrict the right of legislatures to protect people from discrimination. Thus, when the Supreme Court reviews a law under the Equal Protection Clause, it is determining whether a law improperly dis criminates. The Supreme Court does not use the Equal Protection Clause to decide that certain groups are not deserving of protection under civil rights statutes. Normally, the court simply takes a "hands o ff’ approach to legislative de cision-m aking and up holds most laws, so long as there is simply a “ratio nal basis” for the law. Only when a law or government policy is adopted that dis criminates based on what the Supreme Court calls a “suspect” or “quasi-sus pect” classification (or in fringes on fundamental constitutional rights) does the court subject the law or policy to close scrutiny. So far, the court has found only classifications based on race, national origin, alienage, sex and illegiti macy to be inherently “suspect” or "quasi-sus pect.” It therefore will closely scrutinize only those laws or government policies that discrimi nate on the basis of race, national origin, alienage, sex and illegitimacy, and will uphold their consti tutionality only if they are necessary to advance a compelling state interest (or, in the case of sex discrimination, if they are substantially related to advancing an important state interest). The Supreme Court’s failure to subject a clas sification to “strict scrutiny” review does not, however, mean that legislatures cannot pass civil rights protections concerning that classification. For example, although the Supreme Court has refused to recognize age as a “suspect” classifica tion, Congress and legislatures can legitimately pass legislation prohibiting age discrimination without violating the Equal Protection Clause. Likewise, legislatures have, validly, passed stat utes prohibiting discrimination based on sexual orientation, familial status and disability, among other categories, even though none of these clas sifications have been granted “suspect” status by the Supreme Court. Thus, the video deliberately disregards the difference between the judicial and legislative branches of government. The judiciary reviews laws and policies that discriminate against citi zens under the Equal Protection clause; it does not prevent legislatures from passing civil rights pro tections. Queer rights organizations should not adopt the right wing’s “minority status” terminol ogy or their faulty analysis of civil rights laws. 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