I posted this back in December, it may be of benefit to review some aspects of this concept:
A Quick Review of Equal Protection Clause and It's Application to Gay Rights.
bluedawg12 (1000+ posts) Sat Dec-06-08 04:10 PM
Original message
A Quick Review of Equal Protection Clause and It's Application to Gay Rights.
The Equal Protection Clause(EPC)
I am not a legal beagle but discussion of the EPC has come up so often that I thought it would be good to review some of the meanings of various terms and concepts surrounding EPC and gay civil rights.
This topic also goes directly to the heart of some the sneaky right wing ideas and language that they have been pushing. When we hear the following terms alarms should go off. They are rw code for turning back the clock away from human rights movements:
Activist judges
Term limits for Judges
States Rights
Gay is a choice or a life style, not a biological entity.
Strict constructionist judges and fundamental interpretation of the Constitution.
We have heard discussions about how the Courts will review Proposition 8 in terms of the The Equal Protection Clause, how gays constitute a minority, are a “suspect classification,” and are entitled to either strict scrutiny or intermediate scrutiny under law.
BTW, gays being a "suspect" classification does not mean that gays are a suspicious group, it means that when laws are passed singaling out a minority the,"law that categorizes on that basis (is) suspect, and therefore deserving of greater judicial scrutiny."
Groups that are entitled to strict scrutiny, the Court has suggested, are
“discrete and insular minorities” who have historically faced extensive unjustifiable discrimination,
who are unable to remove themselves from the category,
and who have been the subject of such prejudice that they are unable to protect their interests in the legislative process.
One of the chief reasons that anti-gay rights advocates continue to bang and bloviate on the issue of whether being gay is a “choice or lifestyle” is that they know damned well that if they win that argument, they would remove gay rights from strict or intermediate scrutiny, which requires that such a group is “unable to remove themselves from the category,” but, if as they maintain, we could simply change our life style, then, “Bingo!” we are not a protected group and in fact we are not a “suspect group” nor would we be, “discrete and insular minorities.”
This also ties into the often heard right wing comments lamenting “activist judges,” or we hear the other notion, of being able to fire Supreme Court Justices or limiting their terms. We also hear terms like “strict constructionist judges,” the rw fantasy of the fundamental interpretation of the Constitution, as is their penchant for interpreting other tomes in a “fundamental” fashion, plus, they like things that are “strict.” eeew.
Of course if the Justices were to repeal Roe v Wade or other rw causes, they would naturally sing a different tune, as they are well known for their lame situational ethics.
What they want is to return to some long past status quo and to their fading power hierarchy, where blacks, gays and women all just shut up and quietly sat down way in the back of the bus, or in Plessey vs Ferguson, it would be train.
The EPC is meant to ensure that States cannot pass laws that ignore Federal Constitutional rights, hence the other right wing cry: “It’s about States rights!” as they try State by State to enact laws that abridge the rights of gays, as minorities. Which is why it will have to be fought State by State, over time, with regards to the EPC.
http://en.wikipedia.org/wiki/Equal_Protection_Clause The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws".
The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal" by empowering the judiciary to enforce that principle against the states.
More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgement by state leaders, and governments, even including some rights that arguably were not protected from abridgement by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means, of course, has been the subject of great debate, and the story of the Equal Protection Clause is the gradual explication of its meaning.
The Supreme Court has seemed unwilling to extend full "suspect class" status (i.e., status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny) to groups other than racial minorities and religious groups. In City of Cleburne v. Cleburne Living Center, Inc. (1985), the Court refused to make the developmentally disabled a suspect class.
In Lawrence v. Texas (2003), the Court struck down a Texas statute prohibiting homosexual sodomy on substantive due process grounds. In Justice Sandra Day O'Connor's opinion concurring in the judgment, however, she argued that by prohibiting only homosexual sodomy, and not heterosexual sodomy as well, Texas's statute did not meet rational-basis review under the Equal Protection Clause; her opinion prominently cited City of Cleburne.
Notably, O'Connor did not claim to apply a higher level of scrutiny than mere rational basis, and the Court has not extended suspect-class status to sexual orientation.
The Court's decision in Romer v. Evans (1996), on which O'Connor also relied in her Lawrence opinion, and which struck down a Colorado constitutional amendment aimed at denying homosexuals "minority status, quota preferences, protected status or claim of discrimination," seemed to employ a markedly higher level of scrutiny than the nominally applied rational-basis test.
While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation, in which case intermediate scrutiny could apply to gay rights cases.
The Supreme Court has defined these levels of scrutiny in the following way:
Strict scrutiny (if the law categorizes on the basis of race or national origin): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.
Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest. (In past decisions "sex" generally has meant the male/female distinction, not sexual intercourse).
Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest.
http://www.answers.com/topic/equal-protection-clause Equal Protection Clause
Clause set out in the Fourteenth Amendment of the Constitution that dictates that state governments cannot pass or enforce any laws based solely on a specific classification of person by race, gender, religion, ethnicity, or age.
US Supreme Court: Equal Protection
The Equal Protection Clause of the Fourteenth Amendment, adopted in 1868, expressed the commitment of victorious Republican forces after the Civil War to include in the Constitution some protection for the equal rights of newly emancipated slaves.
The focus of the concern for equality was on the rights of African-Americans, but the framers of the Equal Protection Clause deliberately drafted it to provide protection for the equal rights of all persons.
By its terms, the Equal Protection Clause covers action only by state governments.
The Court has, in general, applied the same standards of equal treatment to action by Congress as it has to action by state legislatures.
Ideas of equality prevalent in the 1860s distinguished between civil, political, and social rights.
Equality with respect to civil rights meant equal status in the legal relations of the private economy, coupled with the right to enforce that equal status.
Equality with respect to political rights was more controversial at the outset, with many supporters of equal civil rights opposed to equal voting rights for African-Americans.
Social rights were those arising from the personal, noneconomic interactions among people, and there was general agreement in 1868 that the federal government ought not attempt to guarantee equality in that domain.
When the Court upheld a statute requiring railroads to segregate their passengers by race (Plessy v. Ferguson, 1896), it effectively abandoned the effort to assure civil equality for African-Americans through the Constitution.
The Court suggested that it would apply the Constitution with special care in cases involving disabilities imposed on “discrete and insular minorities” (Footnote Four, United States v. Carolene Products, 1938).
Strict Scrutiny
And in the course of upholding the internment of Japanese Americans during the war, it stated that classifications affecting racial minorities had to survive “strict scrutiny” (Korematsu v. United States, 1944), which the Japanese relocation measures did, the only instance in modern times when a race-discriminating government action has.
The final element of the revival of the Equal Protection Clause occurred when the Court invalidated a statute requiring the sterilization of violent recidivists, but not recidivists in white-collar crime, on the ground that classifications affecting fundamental interests had to be strictly scrutinized (Skinner v. Oklahoma, 1942).
During the 1960s the Supreme Court overturned numerous statutes requiring segregated public facilities and began to explore the broader implications of the doctrine it had begun to develop in the prior decade.
The Court under Chief Justice Warren Burger pulled back from the broader suggestions in these cases and ultimately held that strict scrutiny was appropriate only in cases involving traditional racial minorities and fundamental interests that were themselves spelled out in the Constitution (*San Antonio School District v. Rodriguez, 1973).
Formally, the problem of equal treatment arises when the government treats one group differently from another in the pursuit of some social goal.
Ordinarily, not all members of the disadvantaged group will contribute to the evil that the government is trying to avert and some members of the favored group will contribute to that evil. Classifications are therefore typically both “overinclusive” and “underinclusive.”
The problem for equal protection law is to specify what degree of lack of correspondence between the social goal and the classification used is permissible under what circumstances.
Equal protection law can be described in two ways.
“suspect” classifications
First, the Court distinguishes between statutes that themselves utilize racial or other “suspect” classifications and statutes that, though stated in nonracial terms, nonetheless have a “disparate impact” on racial minorities.
If the statutes use racial terms, they must survive strict scrutiny, which means that the legislature must be attempting to promote extremely important social goals, and the use of the racial category must be almost essential if those goals are to be served. The fit between the social goal and the classification must be extremely close.
In contrast, if the statutes are “facially neutral” in not using racial terms, the fact that they have a disparate impact in practice does not automatically lead to strict scrutiny. Only if the unfair impact on minorities is deliberately intended by the legislature will the Court demand strict scrutiny; otherwise, the legislation must simply be using a classification that is a rational method of accomplishing social goals that the legislature believes important.
The second description of equal protection law treats the distinction between “strict scrutiny” and “rational relationship” differently. On this view the Court has identified several types of classifications.
Some, such as racial classifications, call for strict scrutiny, where the fit between social goal and classification must be extremely close, whereas others, such as those basing government action on the ability of people to pay for services or on their participation in certain aspects of the private economy, are social and economic legislation where the legislature must merely be rational in using the classification to serve its goals.
In the latter cases, the fit between social goal and classification can be quite loose; the legislature can regulate many people who do not contribute to the evil it is trying to avert, and it can fail to regulate a great many people who do contribute to that evil.
Groups that are entitled to strict scrutiny, the Court has suggested, are
“discrete and insular minorities” who have historically faced extensive unjustifiable discrimination,
who are unable to remove themselves from the category,
and who have been the subject of such prejudice that they are unable to protect their interests in the legislative process.
“Intermediate” scrutiny.
There is, however, a third group of classifications that calls for “intermediate” scrutiny.
The doctrinal formulations of intermediate scrutiny have varied, as have the groups that elicit it.
The prototypical case involves a classification based on gender,
Intermediate scrutiny typically means that the Court will look somewhat skeptically on the claim that using a gender or similar classification is necessary to serve important social goals, but it will not demand the extraordinarily high levels of justification that it seeks in cases involving strict scrutiny.
Using intermediate scrutiny, the Court invalidated gender segregation in nursing schools (Mississippi University for Women v. Hogan, 1982) and Virginia's operation of a military college to train only men with a distinctive curriculum (United States v. Virginia, 1996). It upheld a requirement that only men register for the draft, at least when women are not eligible by statute for combat duty (Rostker v. Goldberg, 1981).
Analysts have had difficulty reconciling the Court's results with the doctrinal formulations it uses.
For example, the Court explicitly refrained from requiring either strict or intermediate scrutiny in a case involving discrimination against the mentally retarded, but it nonetheless found unconstitutional a city's attempt to bar a residential group home for the mentally retarded (City of Cleburne v. Cleburne Living Center, 1985).
Justice Thurgood Marshall criticized the Court for pretending that its equal protection analysis uses rigid categories, in which only a few “suspect” classifications or fundamental rights spelled out elsewhere in the Constitution receive special protection.
Rather, he argued, it has adjusted the degree of justification it demands according to a sensitive calculus that takes into account questions of degree.
These questions include how important the interest affected is, whether or not that interest is specifically protected by the Constitution, and how similar the affected group is to groups that have historically been the subjects of unjustifiable discrimination.
Justice John Paul Stevens suggested a similar approach, based on his view that “there is only one Equal Protection Clause” (Craig v. Boren, 1976), not several with different standards of review.
Commentators generally agree that Marshall's analysis and Stevens's make more sense of the Court's actual behavior, and that a more flexible approach than the Court's is appropriate to deal with the varied problems of classification that the Court confronts.
Some decisions suggest a relaxation of the Court's dedication to the “tier” approach. Romer v. Evans (1996) invalidated a Colorado initiative that denied homosexuals and lesbians the ability to secure “protected status” under state antidiscrimination rules, invoking rational-basis review and refraining from holding that sexual orientation was a suspect classification. *
Despite these decisions and academic criticisms, the Court seems committed to using the verbal formulations expressed in the “tier” approach.
Bibliography
Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986).
Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, Harvard Law Review 86 (1972): 1–48.
Kenneth W. Simons, Overinclusion and Underinclusion: A New Model, UCLA Law Review 36 (1989): 447–528
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