awm, on Aug 9 2010, 04:10 PM, said:
mike777, on Aug 9 2010, 03:40 PM, said:
This goes too far, way too far, clearly the majority can limit rights of a minority and in fact have done so veryoften. In fact I bet you would agree with alot of this oppression of the minority in some cases. There are many other minorities besides gays or African-Americans,,,many more minorities.
Of course others would argue race is not the same thing legally as sexual orientation, many others would say they are legally equal.
Sure. Perhaps a good example is laws restricting the smoking of cigarettes in bars and restaurants. This could be viewed as restricting the rights of a minority (smokers). Certainly in many cases laws have been passed which restrict the rights of some groups.
The salient issues include:
(1) Does the law serve substantial purpose to improve the welfare of the majority? A lot of time was spent arguing this point in the same-sex marriage case. The conclusion reached by the judge was that allowing same-sex couples to marry would in no way damage the welfare of opposite-sex couples. Barring people from smoking in public places does improve the welfare of non smokers (mostly in health-related ways).
(2) Is the minority group "deserving" of protection? Certain types of minorities are protected much more heavily than others. In most cases minorities by choice (for example, people who choose to smoke) are not protected nearly as heavily as minorities by genetics (for example, people with a certain color skin). There has been ongoing debate about whether or to what degree sexual orientation is a choice. Modern science has come down pretty strongly in favor of sexual orientation being genetic. This was also discussed in the trial. In contrast, cigarette-smoking is certainly a choice people make.
With respect to equal protection claims, there is a "triple-tiered" framework in place, which is tied into not just whether a classification exists by choice or not, but also, for instance, the historical backdrop of discrimination against a particular class. For example, it's "easier" to discriminate against someone on the basis of sex than on the basis of race, although clearly both classifications are genetic.
The key components to the analysis are how important the governmental interest being advanced by the law is, and how closely related the law is to advancing that interests.
Under the "strict scrutiny" standard, the government interest purported to be advanced must be "compelling," and the law itself must be "necessary" to advancing that interest. In other words, if the government's interest is less than compelling, the law is unconstitutional if strict scrutiny applies. Moreover, even if the government's interests IS compelling, the law is still unconstitutional if it goes further than it would need to go (e.g. it's unnecessarily discriminatory) to achieve that interest. Strict scrutiny is applied when the classification is, e.g., by race. Laws analyzed under the strict scrutiny standard are almost never upheld. I think that when a U. of Michigan affirmative action scheme was challenged under equal protection, it withstood strict scrutiny, in the 1990s or early 2000s, and as I recall, that was the first law to stand up to that standard since
Korematsu, which legitimated Japanese-American internment camps 50 or 60 years previously (and is widely held to have been decided incorrectly).
Under middle-tiered "heightened scrutiny," the law must serve an "important" government interest, and must be "substantially related" to that interest. These laws, then, are more likely to be upheld (but are still usually struck down), because the government's interest no longer has to be "compelling," only "important," and the relationship can be "substantial." The law no longer has to be "necessary." This standard is applied to, e.g., laws that discriminate on the basis of sex. The reason it's easier to discriminate by sex than by race comes down to the differences between "compelling" and "important," and "necessary" and "substantial."
Finally, all laws that discriminate on bases not falling under either of the other two standards are analyzed under "rational basis" scrutiny. Under this weakest of standards, the government's interest has to be "legitimate," and the law has to be "rationally related" to the interest. Laws falling under rational basis scrutiny are almost always upheld. Some SCOTUS language has suggested that there's a level slightly higher than rational basis scrutiny.
There's a "but" here, though; when the law affects access to a "fundamental right," then strict scrutiny is used regardless of the classification. The Prop 8 ruling was decided (at the 9th Circuit) under strict scrutiny because marriage is a fundamental right, even though sexual orientation is not a classification that in and of itself requires anything more than strict scrutiny.
The level of scrutiny to be applied is a good chunk of the battle (though the 9th Circuit said that the ban didn't survive rational basis scrutiny, either; but that's a much harder sell). Precedent, however, is that "mere animus" is NOT a legitimate basis for a law that discriminates, even against a group that isn't protected.
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