Tan is yet another layman who is misled to waste good money. Ravi the creative money making lawyer, yet again.
Equal Protection and Sexual Orientation, JACK LEE TSEN-TA
A. The Traditional Standard:
Rational or Deferential Review
Under rational review, the court generally defers to legislative
judgment. There is a presumption of constitutionality of the
statute in question. The burden of showing that the statute is
unconstitutional lies on the person alleging that it is invalid.9
It is well established that for a statute to be constitutional, it must
use a rational classification of persons founded on intelligible
differentia which distinguish persons within the classification
from those left out of it. This rational classification must have
a rational nexus or relation to the object sought to be achieved
by the statute in question. This “rational nexus” test was laid
down in the Indian cases of Budhan Choudhry v State of Bihar10
and Shri Ram Krishna Dalmia v Shri Justice SR Tendolkar,11 and
followed in Malaysia by Datuk Haji bin Harun Idris v PP.12
The rational nexus test has been applied in Singapore. The
Privy Council on appeal from Singapore in Ong Ah Chuan v
PP,13 in ruling that there was nothing unconstitutional about a
mandatory death penalty for trafficking in certain quantities of
controlled drugs, noted that:
Provided that the factor which the legislature adopts as constituting
the dissimilarity in circumstances is not purely arbitrary
but bears a reasonable relation to the social object of the law,
there is no inconsistency with Art 12(1) of the Constitution.14
This was affirmed by the Court of Appeal in Chng Suan Tze v
The Minister for Home Affairs.15 However in two other cases,
Howe Yoon Chong v Chief Assessor, Property Tax, Singapore16
and Howe Yoon Chong v Chief Assessor & Comptroller of Property
Tax,17 the Privy Council did not apply the rational nexus
test. Instead they held that Art 12(1) would be violated if there
existed “inequalities... on a substantial scale”18 or “deliberate
and arbitrary discrimination”.19 These pronouncements are consistent
with the rational nexus test. If legislation shows “deliberate
and arbitrary discrimination”, it is clear that it must fail the
test.
As rational distinctions may be made with substantially less
than mathematical exactitude,21 courts condone under- and overinclusiveness
in the legislature’s classifications and may even
supply its own justifications for the classification in addition to
objectives put forth by the government.22 Therefore a provision
may not be discriminatory even if the classification used catches
too few or too many people needed to achieve the government’s
objective. Gunther has commented that the minimal scrutiny
applied in theory is virtually non-existent in fact.23
Yet even a provision which satisfies the rational nexus test may
be invalid because the object sought to be achieved by the statute
is itself inherently bad.24 This limitation finds support in United
States and Indian case law. In Bidi Supply Co v Union of India25
Bose J held:
[O]ne can conceive of classifications. . . that will have direct
and reasonable relation to the object sought to be achieved
and yet which are bad because... the object itself is not to be
allowed on the ground that it offends Article 14. In such a
case the object itself must be struck down and not the mere
classification which after all, is only a means of attaining the
end desired.
B. The New Standard: Strict Scrutiny26
In the first 80 years after the enactment of the 14th Amendment
of the Constitution, the United States Supreme Court believed
that the Amendment protected only racial and ethnic minorities
from discrimination.27 But the 1940s saw the doctrine of strict
scrutiny conceived, and it was developed during the term of Chief
Justice Earl Warren in the 1960s. Its source was Stone CJ’s famous
fourth footnote in United States v Carotene Products Co,28 which
said that courts must use a “more searching judicial inquiry”
to protect groups that do not have the ordinary protection of
democratic rule because they are not able to participate effectively
in the political process.
The Warren Court did not abandon rational review, but applied
it alongside strict scrutiny in a two-tier approach. Strict scrutiny
is only invoked when a statute either (1) impinges on the fundamental
rights and interests of people, thus violating due process; or
(2) makes use of a “suspect classification”.29 It has been argued
in the United States that anti-sodomy statutes violate due process
by affecting the fundamental right of privacy of homosexuals; this
argument found its way to the United States Supreme Court but
was rejected in the important decision of Bowers v Hardwick.30
We will not concentrate on this aspect of strict scrutiny but on
whether homosexuals constitute a suspect class.
Unlike rational review, the burden of proof in strict scrutiny
is reversed: it is the government that must prove that the impugned
statute is constitutional. To survive strict scrutiny, a suspect classification
in a statute must be “necessary to the accomplishment”31
of a “compelling state interest”.32 While absolute necessity is
not required, the court will require a close relationship or “tight
fit” between the classification and promotion of the compelling
governmental objective of the statute.33 The government’s policy
must be the least restrictive possible. At present the United States
Supreme Court recognises two suspect classifications: race or
national origin, and alienage.
In WHAT IS RIGHT AND WHAT IS A RIGHT by DOMINIC CHAN
In 2003, the United States (US) Supreme Court in Lawrence v. Texas35
struck down theTexas ban on homosexual sex as being unconstitutional, expanding
the concept of liberty under the US Constitution’s Due Process Clause to
include “individual decisions…concerning the intimacies of…physical relations…(
by) unmarried as well as married persons”.36 Shortly after in February
2004, the Supreme Court of Massachusetts in Goodridge v. Department of Public
Health & anor,37 cited Lawrence38 and further expanded due process to include
the liberty right to S.S.M.,39 taking reference from Halpern40 to redefine marriage
as “the voluntary union of two persons as spouses, to the exclusion of all
others.”41
TheMayor of San Francisco then declared the right to S.S.M.42 while in New
Mexico, the county clerk issued S.S.M. licenses43 until the Attorney General’s
Union’s33 article 21(1), though not legally binding as yet because it has not
been incorporated as a primary law of the communities,34 explicitly prohibits
discrimination on grounds of sexual orientation.
In 2003, the United States (US) Supreme Court in Lawrence v. Texas35
struck down theTexas ban on homosexual sex as being unconstitutional, expanding
the concept of liberty under the US Constitution’s Due Process Clause to
include “individual decisions…concerning the intimacies of…physical relations…(
by) unmarried as well as married persons”.36 Shortly after in February
2004, the Supreme Court of Massachusetts in Goodridge v. Department of Public
Health & anor,37 cited Lawrence38 and further expanded due process to include
the liberty right to S.S.M.,39 taking reference from Halpern40 to redefine marriage
as “the voluntary union of two persons as spouses, to the exclusion of all
others.”41
TheMayor of San Francisco then declared the right to S.S.M.42 while in New
Mexico, the county clerk issued S.S.M. licenses43 until the Attorney General’s
sexual orientation23 could refer to nondiscrimination in general to the rights to
employment, education, social services, amongst others. However, it also opens
the door to the recognition of S.S.M. based on equality grounds.24
Domestically, this argument was accepted in Canada’s Ontario Court of
Appeal in Halpern et al. v. Attorney General of Canada25 in 2003, which held
that the traditional definition of marriage in the common law case of Hyde v.
Hyde as “a voluntary union between a man and a woman”26 is discriminatory
and redefined marriage as “the voluntary union for life of two persons to the
exclusion of all others”,27 ordering the Clerk of the City of Toronto to issue marriage
licenses to homosexual couples. Similarly, Quebec’s Court of Appeal has
ruled that the traditional definition of marriage is discriminatory.28
In Europe, the Netherlands and Belgium legislatively opened civil marriages
to homosexual couples in 2001 and 2003 respectively.29 Most other European
countries allow for some kind of registered partnership with some degree of protection,
following the lead ofDenmark, where such partnerships were introduced
in 1989. By now, most legal systems in Europe provide some kind of registered
partnership status, even in predominantly Catholic countries like Spain.30
Concurrent developments lend weight to the campaign to legalize S.S.M. uniformly
throughout Europe. For example, the European Court of Human Rights
has already interpreted the European Convention on Human Rights (ECHR)
article 14’s nondiscrimination clause,31 though not explicit, as inclusive of sexual
orientation.32 Similarly, the Charter of Fundamental Rights of the European
Union’s33 article 21(1), though not legally binding as yet because it has not
been incorporated as a primary law of the communities,34 explicitly prohibits
discrimination on grounds of sexual orientation.
In 2003, the United States (US) Supreme Court in Lawrence v. Texas35
struck down theTexas ban on homosexual sex as being unconstitutional, expanding
the concept of liberty under the US Constitution’s Due Process Clause to
include “individual decisions…concerning the intimacies of…physical relations…(
by) unmarried as well as married persons”.36 Shortly after in February
2004, the Supreme Court of Massachusetts in Goodridge v. Department of Public
Health & anor,37 cited Lawrence38 and further expanded due process to include
the liberty right to S.S.M.,39 taking reference from Halpern40 to redefine marriage
as “the voluntary union of two persons as spouses, to the exclusion of all
others.”41
TheMayor of San Francisco then declared the right to S.S.M.42 while in New
Mexico, the county clerk issued S.S.M. licenses43 until the Attorney General’s
ruling that the issuance was illegal put a stop to it.44 In Vermont, civil unions45
are allowed whileWashington has also joined in the homosexual marriage fray.46
Meanwhile, several more cities, such as Chicago, Minneapolis and New York,
have expressed support for S.S.M.47 while Florida homosexuals are gearing up to
challenge the state’s S.S.M. ban.
