Suspect classification is a group of individuals who have a historical subject to discrimination. Every state or nation that has a suspect classification law tend to be subject to strict scrutiny principles of review before the Supreme Court. Some past discrimination is based on race, sex, religion, and gender. The Fourteenth Amendment Equal Protection Clause prohibits governments in different levels to treat people unequally (Strauss, 2015). However, they rarely treat people equally. Sexual orientation is a pattern that exists on sexual or romantic attraction to persons of opposite sex or gender, same sex, or both sexes (Hutchinson, 2014). The ambiguity and questions rise on establishing criteria of whether a case should be defined in suspect classification.
Discrete and insular minorities are one of the factors that support suspect classification. This idea has faced major criticism and discussion. The questions are raised upon the definition of discrete and insular that tend to be ambiguous. Also, the court does not have a mechanism to define the two words more specific. Also, the prejudice cannot be measured accurately to define such lawful conditions. Also, people will be gaining legal advantages or disadvantages from such a suspect classification. However, a group of the population that fails to acquire the advantage from the popular democracy because of their minority aspects should be accorded these terms. In this case, discrete and insular should be revisited, redefined, and refocused to ensure all people acquire equal treatment and benefit from the government projects in the same way (Strauss, 2015). Without this refocus, a relative number of people will be suffering from discrimination and ill-treatment due to their minority aspect. However, in the case of sex orientation, this factor does not apply. People get attracted to a certain sex sexually out of the decision and not nature. Sex orientation cannot define a group to be a discrete or insular minority (Hutchinson, 2014).
History discrimination is the second factor that faces various critics. Discussions rise and declare whether historical discrimination should be used to define a current suspect. Also, no clear path to define its relevance. Majorly, all races or religion faces rejection or discrimination at one point or another. Moreover, how does the court define that race has faced discrimination in the past? I find this factor supportive on defining suspect classifications on sex orientation. Despite the few criticism on this factor, historical discrimination tends to play a part on a person’s political, economic, and social power. Traditionally, only two groups have been seen to suffer from historical prejudice (Strauss, 2015). The African-American due to the slavery that pre-existed and women who have suffered from cultural discrimination. In this regard, sex orientation does not meet the historical aspect of discrimination. According to Hutchinson (2014), opposite sex attraction has been supported all through. The homosexuality or heterosexuality has no historical discrimination. They fail to meet the moral principles of the society.
Political powerlessness can be elaborated as a group’s inability to depend on the legislative process to secure its interest. This factor tends to support the earlier criteria in this discussion. Organizations and government agencies use political power to define whether a group or a person have faced historical discrimination in the past or whether a group is discrete and insular. In this view, the courts should protect groups and individuals from political biases. However, little guidance is given by the Supreme Court on how to define political powerlessness. In this case, the court should invest in defining such clauses to ensure people suffering from due to political powerlessness have been helped (Strauss, 2015). For example, the ability to vote, and a pure number of a group are the common measures of political powerlessness. However, sex orientation does not inhibit one from vying or voting in the U.S (Hutchinson, 2014). Thus, it cannot be included as a suspect classification.
Immutability faces criticism on its relevance to defining a suspect. Also, on how the term should be defined in specify. Courts have failed to provide a clear definition of immutability. Initially, the court has defined the term as something biological that a person is born bearing. This definition has raised the question in the state and municipal courts. Some traits such as homosexuality are blurry on whether it is a biological course or a behavioral fact. Also, the current medical advancement has changed the situation. Some biological crisis can be rectified by a medical procedure. Some theories argue that immutability should be defined on the basis of social traits (Strauss, 2015). However, being born as female or male is a biological fact, but the discrimination actions are caused by social construction (Hutchinson, 2014). However, sex orientation is not biological nor social but a behavioral aspect. Thus, it cannot be referred as a suspect classification.
Relevancy is phrased on whether a group’s defining characteristic has a relation to a person’s participating in the society. If a person characteristic does not affect their abilities, the court does not use it to define the suspect. This factor is important in realizing whether a legal process of action is made to oppress or to impress a certain group of people. If a certain characteristic is irrelevant to legislation, the court does dismiss it in the question of the suspect. However, sexual orientation should not be considered a suspect classification because it has no relation to a certain inability or discrimination (Strauss, 2015). Homosexuals and heterosexual face the punishment of being against the societal values and morals and not discrimination (Hutchinson, 2014).