I don’t recall “animus” doing any of the analytical work, though.
Isn’t it that, if a law does some race-based discrimination, we simply apply strict scrutiny – and then strike that law down, if it’s not the least-restrictive way to get a narrowly-tailored solution in the context of a compelling governmental interest, or something? We don’t say “okay, but is there also animus?” – we just get out the big DENIED stamp, is all, and wield it with relish but without asking after animus.
And, likewise, I thought that if a law does some sex-based discrimination, we apply intermediate scrutiny – and we don’t ask whether there’s any animus, that’s not a question that’s relevant, it’s not a thing we’re looking for.
You accept that you live in a representative democracy, and that you don’t get to say, “Hey, I know what’s right, and if the voters don’t, I’ll impose it on them until the stupid shits grow a conscience!”
Congress is the body that passes law. If they refuse to, then there is no new law. That’s the way representative democracy works. If you don’t like, then your job is to elect new Congress people. Every two years the entire House and one-third of the Senate must be selected. In four years, two-thirds of the Senate, the House a second time, and the President have to get the states and the people to approve them anew, or replace them. And in a mere six years, every single member of the House and Senate can be replaced by votes of the people.
Your objection is not that Congress is “incapable.” Your objection is that you want something that the elected representatives don’t, and you’re convinced your view is better and should prevail.
Because those situations (the presence of gay people) existed in the past, but were ignored - they weren’t covered by the law, but they existed. Congress knew what they were approving, and they knew they were not approving a rule protecting gays as a Title VII class.
The distinction is between applying old law to new factual situations, and applying old law to old situations in a new way, simply because many people now think we should.
The only aspect of this that I’m prepared to agree might justify a change is the following: in 1964, Congress knew about gay people, but believed they chose to be gay. Perhaps we might reason that in 2017, it’s crystal clear that this is not true: that gay people are not making a choice, and therefore it’s appropriate to apply the law to new facts.
Unfortunately, that’s not the logic the court adopted.
I’m curious: imagine there were no 19th Amendment. Could we, in your opinion, deduce the same right by just taking a really hard look at the 14th Amendment?
If the Court leads in a progressive direction and that exceeds the outdated intentions of an earlier legislation, it may not work. The people may not accept it, their will be known, and the progress reversed. Not even the Law, in all its majesty, is written on stone by the Pen Ultimate. Mostly, just paper.
Should we? No. We should steer to the norm that the suffragettes, and the public, understood quite well: mandating that women get the vote is a substantive change to the law, and as such the right agents for that change are legislatures.
But do you read the 14th Amendment as having big important things to say about when sex-based discrimination is permissible and when it’s to be struck down?
The problem is that read absolutely literally, the 14th says that NO discrimination is permissible. Every person gets equal protection of the laws, be they 6, 16, or 60 years old. That’s not what the people who passed the amendment thought they were agreeing to.
If I may phrase the question differently: Let’s assume for a moment that we all agree that gay people shouldn’t be fired merely for the fact of being gay. Let’s agree that this is some sort of discrimination and that it is not a societal good to allow it. (You may disagree and think that gay people should be fired for being gay if the employer wishes, but that is irrelevant right now.)
So, my question is, how do we get there?
A ruling like today that applies Title VII to this sort of discrimination, even though its authors likely did not intend this result. (Is there any contemporaneous record that shows the 88th Congress explicitly did not want sexual orientation to enter into its law?)
New legislation written by today’s Congress that explicitly bans firing people solely for being gay.
What?
We know that option two is not going to happen with this Congress. So, are gay people, who will always be a minority of the population, simply supposed to get pro-gay politicians elected to Congress and, until that happens, they just have to suck it up, Buttercup? I don’t see how that is a just or fair expectation. Unlike an ethnic minority, gay people will ALWAYS be a minority. With ethnicity, different ethnic groups will ascend and decline. With the mixing of groups, ethnicity will, over the vast expanse of time, become irrelevant. That will never be true for sexual orientation.
I don’t see any other solution except for Congress to pass laws that prohibit discrimination of some group or other and that a court eventually applies that standard to the maligned group of the day. How else do we get there?
So every amendment, every statute, every thing, every time, must pass through the lens of the time in which it was written? If so, how do you get the First Amendment to apply to radio? How do you get the Second Amendment to apply to modern, but ordinary, firearms?
It’s disheartening to read this question, and then look back at my post #43 , which answers essentially the same question, because it makes me believe you posted this question without reading that post. Here again is the relevant content from post 43:
The fact that there exists another way to characterize the relationships among the parties does not negate the fact that ONE of the ways is illegal. And it’s no help that the more obvious distinction being made between those discriminated against and those not is the distinction that IS (or would be) legal under your analysis. Discriminating against people on the basis of their gender preference discriminates equally against men for not being women liking men, and against women for not being men liking women.
Again, as I said in my post, you don’t get to say “you can’t draw that distinction because there’s some other distinction that I think is better to draw.” You must attack the legal argument in favor of the distinction being drawn (gender discrimination requiring judicial remedy). Another court might make a different distinction (as indeed the Supreme Court did with the same-gender marriage case). But that’s not relevant here.
This struck me because I’ve been immersed in writing history about the way people in the past looked at the new. I find a great deal of continuity in that, meaning that today we react in the same ways at the newness we encounter. People have always looked at the new as hopeful and helpful and as harmful and destructive, many times seemingly simultaneously depending upon what aspect of the new is being discussed and who is discussing it.
What I also find is continuity in the new. Very, very few changes are truly distinct from the slow accretion of changes. Even the inventions we think of as changing everything prove to be variants on the old. I could make a case that the only distinct new innovation in the 19th century was the telegraph, because instantaneous communication was a break with all historical precedence. (Although that ignores the many non-electronic systems that lowered transit time of information to close to real time.)
You probably see where I’m going with this. I’m doubtful that very much law is ever applied to new factual situations. Almost all situations are in fact old situations looked at in a new way. This is true as much for cultural situations as for new technologies. Rights for woman, or minorities, or the disabled, or gays or any other group didn’t suddenly appear in a portal from the unknown. They accreted just as the telephone developed from the telegraph and radio from the telephone and television from radio and the internet from all of those.
As I think you are acknowledging, the legal world is unworkable if the entire legal system has to be rewritten every time a new technology appears. It’s equally unworkable if the entire legal system has to be rewritten every time a new cultural understanding appears.
The main distinction between the method Bricker advocates and the method I advocate is a difference of reality: the method I advocate is one that leads to faster justice and fairness, the method he advocates delays it by generations.
But what, you may argue, will I do if the judiciary takes a radical turn to the right? Will I become a hypocrite?
No. If I’m driving down I-40 because I think that’ll get me to my destination fastest, and if a sudden traffic jam turns it into a slog, I feel no compunction about abandoning the interstate for state highways. That doesn’t involve the abandonment of principles or of good sense; it simply requires that I remember the point of driving is to reach my destination.
If the judiciary turns to the right, I’ll abandon a reliance on the judiciary in favor of alternate means of social change. Doesn’t mean I’m a hypocrite, it just means that I’m focused on the outcome of increased justice and fairness.
I am all for equal rights and equal protections for gay people but this really feels like a strained argument. Bricker is right that a less eye roll worthy argument would have been along these lines:
[Quote=Bricker]
The only aspect of this that I’m prepared to agree might justify a change is the following: in 1964, Congress knew about gay people, but believed they chose to be gay. Perhaps we might reason that in 2017, it’s crystal clear that this is not true: that gay people are not making a choice, and therefore it’s appropriate to apply the law to new facts.
[/quote]
But we can add an even more reasoning: homosexuality was considered a mental defect at the time , they were considered incapable of child rearing and a host of other stereotype characteristics. Those “truths” have fallen to real research.
Sure. But the problem with that approach, as I see it, is that our system is based on agreeing upon a system of fashioning the law ahead of time, and not allowing you to choose the path each time that produces the result you like,
That’s sort of the sine qua non of a representative democracy, in fact.
But I agree it’s not hypocritical, unless you contend that the judiciary’s changing laws in directions you don’t like is somehow not legitimate. In other words, you may abandon reliance on the judiciary, but you must also acknowledge that someone else using your tactics against you is just as entitled to use the judiciary for their ends as you are for yours.
The problem with that approach is is inconsistency. That the same law could be used to reach different outcomes is a bug, not a feature. I wouldn’t call your approach hypocritical because it is outcome oriented in a consistent way, but what I would call it is dangerous. It is dangerous to the rule of law, it is dangerous to representative democracy. It is dangerous to the separation of powers. And on top of that, an outcome focused approach can be used to excuse all manner of bad behavior and governmental power grabs.
That system functions well if its leaders are benevolent, and functions poorly if people behave like people.
Yes. I agree that these changes represent real changes in the factual situation, similar to the Internet being “press” and an automatic rifle being a firearm.