Sunday, January 2, 2011

Assimilationist bias in equal protection: the visibility presumption and the case of "don't ask, don't tell" - by Kenji Yoshino – The Yale Law Journal, Vol. 108, 487 (1998)


Equal protection heightened scrutiny jurisprudence currently privileges the talismanic classifications of race and, to a lesser extent, sex. In considering arguments that other classifications be accorded heightened scrutiny, the courts have required claimants to demonstrate the similarities these classifications share with race and sex. Commonalities between the two paradigm classifications thus play a powerful gatekeeping role.

Two commonalities emphasized by the courts are that race and sex ostensibly mark individuals with immutable and visible traits. A classification will therefore be less likely to receive heightened scrutiny if its defining traits can be altered or concealed. By withholding protection from these classifications, the judiciary is subtly encouraging groups comprised by such classifications to assimilate by changing or hiding their defining characteristic. This is an assimilationist bias in equal protection,(1) which I will critique in this Article.

Under current equal protection doctrine, the question of whether a classification deserves heightened scrutiny precedes the question of whether the legislation is sufficiently related to its objective. Indeed, the answer to the first question determines the force with which the second is asked. Thus, if a classification is deemed to merit "strict" scrutiny, the state must meet the exceedingly high standard of showing that its classification is necessary to promote a "compelling governmental interest."(2) If the classification garners "intermediate" scrutiny, the state must show that the classification "serves important governmental objectives and is ... substantially related to ... those objectives."(3) Finally, if the classification is merely accorded "rational review," the government need only show that the classification bears "a rational relationship [to] ... some legitimate governmental purpose."(4) As a practical matter, "strict scrutiny" almost invariably leads to the invalidation of legislation, while "rational review" almost invariably leads to the upholding of legislation.(5) The determination of the level of scrutiny is therefore a crucial threshold step in the analysis of whether legislation will survive.(6)

To date, the Supreme Court has extended some form of heightened scrutiny to classifications based on race,(7) sex,(8) national origin,(9) alienage,(10) and illegitimacy.(11) The Court has not, however, provided a clear overarching rationale for why these five classifications, and not others, are particularly deserving of judicial solicitude.(12) It has instead deployed, again without much explanation, a set of factors to determine whether a group is worthy of heightened scrutiny. These factors, which are not requirements, include the history of discrimination suffered by the group, the group's political powerlessness, and the immutability and visibility of the characteristic defining the group.(13)

An assimilationist bias in equal protection jurisprudence manifests itself in the immutability and visibility factors. These factors make courts more likely to withhold heightened scrutiny from groups that can change or conceal their defining trait. (I will call such groups indistinct, in contrast to distinct groups that cannot assimilate in either of these ways.) Through these factors, the jurisprudence creates an incentive for indistinct groups to assimilate into the political mainstream when faced with burdensome legislation. The primary normative argument of this Article is that the assimilationist bias embodied in the immutability and visibility factors is pernicious and that these factors should both be retired…
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Suspect Symbols:
The Literary Argument For Heightened Scrutiny For Gays
Kenji Yoshino
November 1996 | 96 Columbia Law Review 1753

This Article can be read as a response to a question a federal appellate judge asked me. During a clerkship interview, the judge inquired about a course on my transcript subtitled "Queer Theory." I told him it was a course on legal, political, and sociological theories of sexual orientation and mapped some of its themes. He listened attentively, then stated: "Actually, what I wanted to know was what the word queer' means." Quick to rationalize authority, I assumed he knew what the word meant, and was attempting to gauge the subtlety of my understanding of it. So I responded: "My understanding is that it's a term once used in a derogatory way towards homosexuals that has been co-opted by the gay-rights movement, like the pink triangle." 1 I was about to continue, when he interrupted: "What's the pink triangle?" A beat. I replied: "The pink triangle was used by the Nazis during the Holocaust to designate homosexuals." The judge said: "I didn't know that." Photo

I knew that the judge recently had heard a controversial case considering whether gays should be accorded heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment, and therefore assumed he had a certain modicum of cultural literacy about gays. 2 My immediate reaction to his question about the word "queer" was to interpret it as a test given by a teacher. When he asked about the pink triangle, I could no longer sustain the illusion…
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Columbia Law Review

Other Writings
By Kenji Yoshino Photo

Gay Civil Rights Movement
by Kenji Yoshino,
December 31, 2001 – The Yale Law Journal Online

Kenji Yoshino
Chief Justice Earl Warren Professor of Constitutional Law
New York University School of Law

40 Washington Square South, 501

New York, NY 10012 

by Kenji Yoshino, UCLA Law Review Vol. 57, Issue 5 (June 2010) | “PREJUDICE AGAINST DISCRETE AND INSULAR MINORITIES”

Groundbreaking Study Finds Family Acceptance of Lesbian, Gay, Bisexual and Transgender Adolescents Protects Against Depression, Substance Abuse and Suicidal Behavior in Early Adulthood – by Caitlin Ryan, PhD, December 6, 2010 - FAMILY ACCEPTANCE PROJECT.

Know thyself – Plato  John Paul II

This above all: to thine own self be true, 
 And it must follow, as the night the day, 
Thou canst not then be false to any man. - William Shakespeare

Why do you look at the speck of sawdust in your brother's eye and pay no attention to the plank in your own eye? How can you say to your brother, 'Brother, let me take the speck out of your eye,' when you yourself fail to see the plank in your own eye? You hypocrite, first take the plank out of your eye, and then you will see clearly to remove the speck from your brother's eye. - Luke 6:40-42

GAY YOUTH SUICIDE | BENEDICT XVI & BISHOPS Child Sexual Abuse Cover-ups – Negligence Protecting (1) Children & (2) LGBT Children | Family of Rutgers suicide victim lends name to bill – November 19, 2010 – CNN  Photo

Gay Marriage - WITCH HUNTS ->The Crucible (1996) -> McCarthyism 1940’s -1950’s, -> Benedict XVI 2005

30 years of Ratzinger/Benedict XVI’s - Directives To Hierarchy – To make - THREATS, SILENCE, HARM AND DISPOSAL of Catholic Personnel Supportive of LGBT Adults and Children

What you cannot do is accept injustice.
From Hitler – or anyone.
You must make the injustice visible – be prepared to die like a soldier to do so.
Mahatma Gandhi

Kids Are Being Hurt!!!

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