Chicago City Attys Claim EP Clause Does Not Protect Gays

In a strange legal move, the Attorneys for the City of Chicago filed a Motion to Dismiss claiming that gays (as a group) are not protected by the Equal Protection Clause.  This position seems strange, given the proper interpretation of the Equal Protection Clause, as set forth in cases like Romer v. Evans, 517 U.S. 620 (1996).  In Romer, the Supreme Court of the United States explained that:  "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification [or, in this case, treatment under the law] so long as it bears a rational relation to some legitimate end."  Id. at 631.

Thus, even if gays and lesbians are not considered a suspect class and entitled to heightened strict or intermediate scrutiny, they are certainly protected, in some measure, under the Equal Protection Clause.  At the very least, the Equal Protection Clause requires the police (if the allegations of the plaintiff are true) to justify their actions under the lowest form of review.

This case arose when a man was arrested and placed in the backseat of a police car.  When he tried to use his phone, he alleges that he was dragged out of the car and beaten while the policemen used homosexual epithets.  When he began to bleed, he informed the police officers that he was HIV positive and he was taken to a hospital for treatment.  Subsequently, he filed a lawsuit against the police officers alleging that he was beaten due to his sexual orientation.  The full text of the story can be found in Vol. 8, No.51 of the Chicago Free Press (Aug. 22, 2007).

-SRB