| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 96 === Under the equal protection clause of United States, when a law discriminates against a politically powerless group, the class is entitled to heightened standard of review. In Taiwan, there are also some master thesis argues that Gay and Lesbian are a kind of suspect class. However, using suspect class theory will cause some defect; in particular, it will violate the doctrine of separate of power. Moreover, recently the U.S. Supreme Court has never produced new suspect classes. Therefore, the point of my thesis is to see what kind of theory under equal protection of law can avoid the defects that suspect class theory produce.
This thesis will discuss some equal protection cases about Gay and Lesbian in U.S. courts, including Bowers v. Hardwick, Lawrence v. Texas, Baker v. State of Vermont, and Goodridge v. Department of Public Heath. And we will find the reasons why the court should protect Same-Sex intimate relationship against government intrusions. Additionally, the thesis will point out that as long as the court refuse to use traditional rational basis review in these cases, the law which discriminates against Gays and Lesbians won’t be upheld. (Actually it did.) Therefore, the most important thing is to find what kind of reasons can ask the court to use heightened standard of review. To achieve this goal, I will distinguish the difference between suspect class theory and suspect classification theory, and argue that suspect classification theory won’t produce the defect that suspect class theory does. Then, I will suggest that to claim sex orientation is a kind of suspect classification is a better strategy to ask the court to raise the standard of review. Moreover, I also prefer the strategy that sex orientation discrimination is a kind of sex/ gender discrimination. As we use this sex/gender equal argument, we will find the meanings behind the sex orientation discrimination.
Finally, this thesis will discuss the Constitution Interpretations in Taiwan. As the Honorable Justice Tzu-Yi Lin has mentioned the suspect class theory in his dissent in Interpretation No. 584, I suggest that the Justices of Constitution Court must consider the defect suspect class theory cause. And as the Legislation Yuan has pass some law to forbid the discrimination based on sex orientation, I suggest that the Justices of Constitution Court must conform to the new public will, and raise the level of judicial review in sex orientation discrimination case.
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