Assorted Homosexuals v. FDA

In  In re FDA Blood Donation Guidanceand Related Regulations , also known as  Assorted Homosexuals of Sierra v. United States Food and Drug Administration , an organization representing assorted gay and bisexual men residing in Sierra who wished to donate blood brought a challenge under the Equal Protection Clause of the Fourteenth Amendment alleging the unconstitutionality of the U.S. Food and Drug Administration's prohibition on blood donation by men who have had sex with men within the past year. The petitioners, Assorted Homosexuals of Sierra, were represented by renowned attorney and jurist Dewey Cheatem of the law firm Dewey, Cheatem and Howe.

The Court's opinion
The Court unanimously held in favor of the petitioners. In doing so, it revised its test for recognizing new "suspect classifications" which trigger strict scrutiny. Previously the Court had considered four equally important factors: (1) the group was historically subject to discrimination; (2) the characteristic is unrelated to the group's ability to contribute to society; (3) the characteristic is "immutably"; and (4) the group is a minority and/or politically powerless. In place of this test, the Court held that a classification is presumed suspect when target an immutable characteristic; if they do, that presumption may be rebutted by clear and convincing evidence that classification has not historically formed the basis of discrimination against a politically powerless group. The Court termed this the "Dewey test," after counsel for petitioner Dewey Cheatem.

Applying the facts to the case, the Court found that sexual orientation is an immutable characteristic, triggering a presumption of suspicion. Furthermore, the Court found that the presumption could not be overcome: lesbians, gays, and bisexuals have historically faced significant discrimination and form a miniscule minority of the electorate.

Citing cases
The following cases have cited this case:


 * In re John Smith, No. 20-06 (Sierra Nov. 28, 2020): Applying the Dewey test of In re FDA Guidance to hold that HIV status is a protected characteristic under the Fourteenth Amendment.