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The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include (A) whether the class has been historically subjected to discrimination; (B) whether the class has a defining characteristic that frequently bears a relation to ability to perform or contribute to society; (C) whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group; and (D) whether the class is a minority or politically powerless. Immutability and lack of political power are not strictly necessary factors to identify a suspect class.
Plaintiff Edith Windsor sued as a surviving spouse of a same-sex couple that was married in Canada in 2007 and was a resident in New York at the time of her spouse's death in 2009. Windsor was denied the benefit of the spousal deduction for federal estate taxes under 26 U.S.C. § 2056(a) solely because Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, defines the words "marriage" and "spouse" in federal law in a way that bars the Internal Revenue Service from recognizing Windsor as a spouse or the couple as married.
Did the discrimination in this case involve a quasi-suspect classification?
The circuit court concluded that review of § 7 required heightened scrutiny because (A) homosexuals as a group have historically endured persecution and discrimination; (B) homosexuality has no relation to aptitude or ability to contribute to society; (C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and (D) the class remains a politically weakened minority. The circuit court further concluded that the class was quasi-suspect (rather than suspect) based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi-suspect. The circuit court held that the rationale premised on uniformity was not an exceedingly persuasive justification for DOMA, and that DOMA was not substantially related to the important government interest of protecting the fisc.