Petition for Review - California Courts - State of California

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A. The First Appellate District Announced An Approach To Suspect Class Analysis That Conflicts With This Court’s Precedents And That Will Cause Confusion Among State Courts. In determining whether laws that classify on a particular basis should be subject to strict scrutiny under the California Constitution, this Court has considered a number of factors designed to identify classifications that are likely to be based on invidious rather than legitimate bases. “The determination of whether a suspect class exists focuses on whether ‘[t]he system of alleged discrimination and the class it defines have [any] of the traditional indicia of suspectness: [such as a class] saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.’” (Bowens v. Superior Court (1991) 1 Cal.4th 36, 42 (citation omitted) (bracketed modifications in original).) Contrary to the First Appellate District’s overly rigid approach, this Court has treated these factors as considerations, rather than mechanically treating each as an absolute requirement. Thus, a group need not manifest all of these factors in order for laws affecting the group to warrant strict scrutiny. In particular, contrary to the First Appellate District’s decision, this Court has never held that only classifications based on immutable traits can be deemed suspect. Indeed, in the Court’s most recent discussion of the “indicia for suspectness,” the Court did not mention immutability. (See Bowens, supra, 1 Cal.4th at 42; see also e.g. Serrano v. Priest (1976) 18 Cal.3d 728 [holding school district wealth to be a suspect classification under the state equal protection clause without any reference to immutability].) When this Court has referred to immutability as a relevant 10
factor, it has done so only in passing, with little or no discussion, and has focused its analysis on other factors with a more direct bearing on whether the discrimination at issue is invidious. (See, e.g., Sail’er Inn v. Kirby (1971) 5 Cal.3d 1, 18 [“What differentiates sex from nonsuspect statuses, such as intelligence or physical disability, and aligns it with the recognized suspect classifications is that the characteristic frequently bears no relation to ability to perform or contribute to society.”].) Similarly, the United States Supreme Court has “never held that only classes with immutable traits can be deemed suspect.” (Watkins v. U.S. Army (9th Cir. 1989) 875 F.2d 699, 725 (conc. opn. of Norris, J.) (citations omitted).) Thus, the First Appellate District was wrong to treat immutability as a necessary or talismanic factor in determining whether strict scrutiny applies to a particular form of discrimination. The First Appellate District’s error in this regard will cause confusion not only with respect to sexual orientation, but perhaps even with regard to some classifications that the courts previously have treated as suspect. Moreover, even if immutability were a necessary criterion, the First Appellate District acknowledged that there is no consensus on what such a requirement would encompass – that is, whether immutability is limited to traits that are “genetic” or “biological.” (See opn. at p. 44, fn. 27; id. at p. 6 (conc. opn. of Parrilli, J.) [“[I]f being gay or lesbian is an immutable trait or biologically determined, then we must conclude classification based on that status which deprives such persons of legitimate rights is suspect.”] (emphasis in original).) In many equal protection decisions, immutability does not require a genetic or biological basis; rather, immutability refers to a characteristic that is “beyond the individual’s control.” (City of Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 441; Darces v. Woods (1984) 35 Cal.3d 871, 892-893.) Furthermore, immutability does not mean an absolute inability to change the class trait. Children can be legitimated; 11
Page 1 and 2: Case No. S____________ IN THE SUPRE
Page 3 and 4: TABLE OF CONTENTS STATEMENT OF ISSU
Page 5 and 6: Hernandez-Montiel v. I.N.S. (9th Ci
Page 7 and 8: STATEMENT OF ISSUES PRESENTED 1. Do
Page 9 and 10: All of those holdings depart signif
Page 11 and 12: violation of the California Constit
Page 13 and 14: Final Decision in the case (AA at p
Page 15: other vulnerable groups who seek co
Page 19 and 20: courts throughout the state that de
Page 21 and 22: particular, this Court has stressed
Page 23 and 24: Cal.3d 705 [persons with prior conv
Page 25 and 26: substance left of the “equal” p
Page 27 and 28: California Constitution’s guarant
Page 29 and 30: constitutional harms caused by the
Page 31 and 32: Moreover, “the ballot argument ac
Page 33 and 34: imposed by the statutory exclusion
Page 35: CERTIFICATE OF WORD COUNT PURSUANT

Petition for Review - California Courts - State of California

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