The "Behavior/Conduct" vs "Class" argument

Discussion in 'Gay & Lesbian Rights' started by JeffLV, Jun 20, 2013.

  1. JeffLV

    JeffLV Well-Known Member Past Donor

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    In this forum and elsewhere, I frequently see arguments made against the activism for gay people on the basis that it is a "behavior/conduct" and not a "class". Especially with regard to constitutional questions, the question is sometimes raised whether gay people can even argue for protections and equal treatment on the basis of their category as a "behavior/conduct" rather than a "class" such as race or gender.

    Visceral objections are sometimes made claiming that the activism for gays is "all about sex", asking why any law should be based on a protection of sex. This is more meant to degrade the argument and activists than argue a technical point.

    Whether arguing the technical or visceral points, it turns out that the Supreme Court has already addressed this, several times at least.

    The following quotes come from the majority opinion in Christian Legal Society v. Martinez, argued in 2009, and cases it referenced. The case addressed whether the State University could deny recognition of a Christian student organization on the basis that the organization would require all members to sign a "Statement of Beliefs", which thereby excluded LGBT and their non-LBGT advocates. All students are required to pay tuition, part of which funds student organizations... so the question at hand is whether the university can deny recognition of the proposed student organization based on the fact that it would deny membership to students who have to pay for it regardless. At the root of this question is to what degree a discrimination on the basis of a belief or practice can be a proxy for discrimination against a class. Where that line is drawn helps balance the Freedom of Speech/Religion of the organization against the protections of the individuals effected by it based on their practice or endorsement of those beliefs.

    Some relevant quotes:
    http://www.supremecourt.gov/opinions/09pdf/08-1371.pdf
    Getting to the point at hand:

    In other words, the representatives of the proposed student organization "CLS" claim that they are not enforcing a policy that discriminates against the class of individuals defined by "sexual orientation", only against a behavior. The opinion addresses this statement as follows:



    Certainly some behaviors can be easily and closely correlated with classes, such a wearing religious attire, the performance of sacraments, or other tendencies that are more common to an individual based on their race, nationality, religion or gender. Other cases are not so clear.

    When the court says "Our decisions have declined to distinguish between status and conduct in this context....When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination"... it seems to be implying that "homosexual persons" are already understood as a class independent of behavior that tends to be associated with them, or that perhaps over time in the given context, a discrimination in law on a basis of behavior creates a class as understood in this context. (for example, think of "left-handers" which are only defined by a preference for the left hand - and whether a "class" may be defined based on a history of legal discrimination against left-handers).

    I'm not sure which position they are taking there, or how they would distinguish between behaviors targeted by law which do or do not ultimately represent a targeted "class", but regardless they do seem to have a position that homosexuals are indeed a class. The difficulty in identifying members of the class may be legitimate when debating legal concerns, but the question of whether or not it is a class, and a class which can be targeted with laws against behavior has been addressed.
     

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