Strict Scrutiny for LGBTQ?

Due to a new study that is currently being conducted by DePaul University in Chicago, LGBTQ may get their day in court as a class of people protected under strict scrutiny. According the NY Times article, the study may show that homosexuality is an immutable characteristic. The article reads:

"The Cabreras hope the findings will help silence critics who say homosexuality is an immoral choice.

If fresh evidence is found suggesting genes are involved, perhaps homosexuality will be viewed as no different than other genetic traits like height and hair color, said Julio, a student at DePaul University in Chicago.

Adds his brother, ''I think it would help a lot of folks understand us better.''

The federally funded study, led by Chicago-area researchers, will rely on blood or saliva samples to help scientists search for genetic clues to the origins of homosexuality. Parents and straight brothers also are being recruited.

While initial results aren't expected until next year -- and won't provide a final answer -- skeptics are already attacking the methods and disputing the presumed results.

Previous studies have shown that sexual orientation tends to cluster in families, though that doesn't prove genetics is involved. Extended families may share similar child-rearing practices, religion and other beliefs that could also influence sexual orientation.

Research involving identical twins, often used to study genetics since they share the same DNA, has had mixed results.

One widely cited study in the 1990s found that if one member of a pair of identical twins was gay, the other had a 52 percent chance of being gay. In contrast, the result for pairs of non-twin brothers, was 9 percent. A 2000 study of Australian identical twins found a much lower chance.

Dr. Alan Sanders of Evanston Northwestern Healthcare Research Institute, the lead researcher of the new study, said he suspects there isn't one so-called ''gay gene.''

It is more likely there are several genes that interact with nongenetic factors, including psychological and social influences, to determine sexual orientation, said Sanders, a psychiatrist.

Still, he said, ''If there's one gene that makes a sizable contribution, we have a pretty good chance'' of finding it.

Many gays fear that if gay genes are identified, it could result in discrimination, prenatal testing and even abortions to eliminate homosexuals, said Joel Ginsberg of the Gay and Lesbian Medical Association.

However, he added, ''If we confirm that sexual orientation is an immutable characteristic, we are much more likely to get the courts to rule against discrimination.'''

Many of the predominant reasons given for not striking down laws regarding prohibition of same-sex marriage for example rely upon the fact that the LGBTQ segment of our population are not protected under strict scrutiny which requires that the law be "narrowly tailored" and have a "compelling interest." Right now, at best, LGBTQ are protected under a degree of scrutiny called "rational basis." All this analysis requires for a law to pass constitutional muster is that it be reasonably related to an important governmental objective. In the case of same-sex marriage, this "important governmental objective" has been said to be a concern for the proper environment in which to rear children (with a mother and father).

Socio-economic Factors Fail in Creating a "Diverse" Student Body

A NY Times article reports that high schools are having trouble creating diverse student bodies using socioeconomic factors rather than race. The article reports when schools in San Francisco began considering other factors besides race to create a diverse student body, these plans did not work. While the premise of race correlating with income is fertile ground for creating a diverse student body in theory, in practice the experience of using such criteria has proved quite difficult.


What does this mean for the use of race in creating a diverse student body? It at the very least does not entirely foreclose the option of utilizing factors that favor certain races in designing a racially diverse student body. Justice Kennedy's opinion in the recent Seattle schools case therefore is very prescient in emphasizing the fact that in some cases race may actually be a useful means of selecting and rejecting certain applicants for high school admission. (Admissions to undergraduate and graduate education remain an entirely separate issue addressed in two other affirmative action cases).

The findings by the San Francisco schools also raise interesting questions about what exactly diversity means. What precisely constitutes a "diverse" student body? What's wrong with having an entirely black student body? For example, a high school student body could be composed entirely of black students. However, if one digs deeper, and gets to know each individual student, we find that some are children of wealthy doctors, lawyers or business men. Some come from housing projects nearby. Others are immigrants who recently came from Sudan as refugees and are learning English as a second language. Some of these students aspire to be artists, NBA basketball players, president, or the U.N. Secretary General. Would not someone say that this is a diverse group of students who could learn from each other's different experiences, talents, and backgrounds?

There are real and substantive differences between each individual student in the scenario that could provide educational benefits. Are the educational benefits even greater when these students can visually see differences in skin color? An interesting question that courts may have to confront one day (perhaps rather soon) in the future.

Wrong Issue Addressed in Caretaker Agency Case

Today's decision by the USSC to uphold the Department of Labor's interpretation of a 1974 Fair Labor Standards Amendment lacks the right frame of reference. The Department's interpretation of the Fair Standards Amendment is that it exempted caretakers contracted in the home from minimum wage and maximum hour rules of the Fair Labor Standards Act of 1938. What this essentially means is that this subset of caretakers are subject to the whims of the labor agency contracting them. Caretakers can be paid anything and can be required to work as many hours, without being paid overtime by the contracting agency.

A caretaker who was contracted to the home sued her employment agency for refusing to pay her for her overtime work. This raises, what should have been the appropriate frame for viewing the case: due process of law. Although this was not the question before the Court when they decided this case, the interpretation of the law comes into conflict with this basic right guaranteed by the 14th Amendment. Section 1 of the 14th Amendment reads:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The caretaker lost her compensation for the hours she worked overtime and thus was deprived of property that was rightfully hers. While the Court finds that the process of creating the law was within reason and that the Department of Labor could interpret the FLSA amendment in such a way as to exclude caretakers from the regulations imposed by the FLSA, the law itself should not be constitutionally sound. It is really that question which the USSC failed to answer in its opinion and should have been the framing of the issue in the case.