Where did miscegenation laws come from? I am not advocating a system where there are no fundamental rights that are recognized. But at the outset, those fundamental rights were recognized in the Constitution by the people.
This is not a law of constitutional dimension. Nobody has a right to work at a private business free from discrimination based upon race or anything. In 1964, Congress changed this by enacting a law protecting particular classes of people from private discrimination, and only those classes. It desired to allow private business owners to discriminate for any other reason.
To take the term “sex” from the law and apply it to absolutely anything and everything related to sex is absurd. Leaving aside the transgender bathroom debate, can a private business not have separate mens and womens restrooms? Can I argue that as a man, I am being discriminated against because I cannot use the women’s room?
Or, stated another way, if we are talking about anti-miscegenation laws, the laws clearly reflect an animus towards the black race, even if they are facially neutral. That’s a no-no. If I say that I will only hire male lawyers because that’s a man’s work, I am discriminating against women.
In this context, which sex, male or female, does this policy of firing gay people discriminate against?
It’s simple, if you see one of your male employees out at the bar, kissing his girlfriend, will you fire him? If not, then you cannot fire one of your female employees for being at the bar, kissing her girlfriend.
But if I would also fire a male employee for kissing his boyfriend, then by definition I am not discriminating against my employees on the basis of their gender. I am discriminating against them based upon their sexual orientation: a classification not contained in the law and one that Congress has consistenly refused to add.
Again, under my (hypothetical) policy, which gender am I disfavoring? Men or women?
I don’t know how many different ways to say this: I’m not advocating for a particular system, but rather for outcomes. I’m not in favor of judges giving deference to the law or in favor of judges interpreting according to their whims. I’m in favor of people–judges or otherwise–taking actions that increase fairness and justice.
Too often in these threads we give undue deference to procedure, at the expense of outcome. I think that’s foolish. If you’re not paying attention to the outcome, what’s the point?
That’s not the correct way to see it. Someone who hires women for the front office and men for the factory line might similarly claim that they’re disfavoring neither gender, and a man who’d prefer office work or a woman who’d prefer line work is SOL for being born the wrong gender. But such defenses hold no water.
The question isn’t which gender you’re disfavoring. The question is whether you’re discriminating against an individual based on gender. If you’d fire a woman for doing the exact same thing that you wouldn’t fire a man for doing (hooking up with Sheila), you’re discriminating against her based on her gender.
I understand what you’re saying, though I disagree with it. I disagree because another person is able to apply the exact same approach, advocating for outcomes, except sometimes those outcomes will be bad and there is then no rule or defense to fall back on. The rule of law requires adherence to procedure. Otherwise the strongest guy in the room who is also focused on outcomes always gets what he wants. A focus on outcomes could justify jailing opposition for the greater good. A few months ago the strongest guy in the room was Obama. But right now the strongest guy is Trump. Tomorrow it could be Putin.
[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]
You decry judicial activism, but I don’t see how this is any different. You concede that Congress in 1964 did not intend to protect gay people in this law. You seem to be saying that if Congress in 1964 had knowledge transported to them in 2017, they would have written the law differently.
How can we possibly know that when the Congresses from 1965-2017 have refused to amend the law despite all of the incremental changes in perceptions of homosexuality? Further, even if we decide (and who is “we” and by what mechanism did we decide this) that homosexuality is legitimate and on par with heterosexuality in every way, it does not follow that there needs to be anti-discrimination protection enshrined in law.
I mean, a person might be a member of the Rotary club, which is a fine organization that helps the community, but there are not protections in the law for Rotarians.
If the times have indeed changed such that homosexuality is viewed differently and anti-discrimination laws need to include them, that shouldn’t be judges doing it, but Congress. I would have expected you to firmly believe that.
Right. If you refuse to hire me (a man) for office work, then you are discriminating against males in your office work hiring practices. If you refuse to hire a woman for the factory line, you are discriminating against women in your factory hiring practices.
Your second paragraph is true, but only presents half of the policy in question. If I would fire Steve for dating John, but not Melissa for dating John, I am also discriminating against men. But, then if I am “discriminating” against BOTH men and women with respect to the same thing, then by definition I am not discriminating based upon sex/gender.
What if I simply hate everyone that lives on a particular street that is 50% white and 50% black. Since some of those people are blacks, am I a racist?
You mention “animus” in the middle of that; but such laws are “a no-no” even minus “animus”. An anti-miscegenation law that had no “animus” behind it – but failed to pass strict scrutiny – would be “a no-no”. A declaration that females won’t be hired for a job can be branded “a no-no” due to intermediate scrutiny – regardless of “animus”. Whether there’s “animus” is irrelevant.
Possible within the rule of law is not the same as consequence of having the rule of law.
Ah. That’s the disconnnect then. You don’t understand how outcome driven jurisprudence leads to the loss of the rule of law. You’re disputing the causal mechanism, at least implicitly.
I don’t have time for a longer response. But one of the main causes is the loss of legitimacy of the court. Once it loses legitimacy, it loses power, and it will be dissolved by the first president in whose interest it is to do so. That is already happening here. It is further along in some of the places I mentioned that used to have the rule of law.
Right. Although after Obergefell, I am not sure that the Court even uses the tiers of scrutiny approach.
The point about animus was the reason for striking down the anti-miscegenation law. The proponents of the law said that it did not discriminate based upon race because neither race could marry someone of the opposite race: the law was equal to everyone. Although the Court applied strict scrutiny, it found that the race based classification was, in practice, solely motivated by animus towards the black race and therefore failed strict scrutiny.
There are differences here, one, because it is not a constitutional issue, and second, it is not a policy that has animus or even directed towards a particular gender. It is not directed at men for being men or women for being women.
As I understand it, if race-based stuff isn’t narrowly-tailored as the least-restrictive way to further a compelling governmental interest, then it’s “a no-no”.
And so if you ask what’s the compelling governmental interest and get the prompt reply that there is none, just animus – well, I figured you’re done as soon as they said “there is none,” and don’t need them to add “just animus”. Yeah, “just animus” is useful if you’re trying to prove the bit about “there is none” – but it’s irrelevant if you can already toss a “there is none” out there.
And if that’s so…
…then it doesn’t matter whether this right here is “a policy that has animus”. The policy stands or falls, with regard to the appropriate level of scrutiny, even if there’s no “animus” whatsoever. If that’s so, then I genuinely have no idea why you keep mentioning “animus”. Like, if a judge delivers his opinion about the prongs of the relevant scrutiny test, and then clears his throat right before saying whether the policy at issue fails the test, there’s literally no reason for you to jump to your feet and say, “But, your honor, you haven’t factored in whether there’s animus!”
I see what you are saying, and I agree to a point. The traditional reasons for excluding members of these protected classes is because the business owner just doesn’t like them. The owner forbids blacks, Jews, etc. because of animus. That’s the traditional rationale for making these exclusions against the law: it is forbidden to refuse service to blacks simply because of animus towards that race. If a black customer is being rude, using profanity, etc., I can eject him for that, but not because I hate blacks.
The second reason is stereotypes. I can’t say that women are such delicate flowers that they can’t work in the machine shop, but that they can fetch me coffee and bring donuts. I have to accept women in my workplace on the same basis as men. However, I can require a dress code (ties for men, business slacks for women) based upon gender.
The law, then prevents only the animus or the stereotypes that it prevents and no more. This discussion about strict v. intermediate scrutiny is really not applicable as this has to do with statutory interpretation and not constitutional law.
Imagine the legislature passes a brand-spanking-new law that says women are now banned from secretarial jobs, and so they can no longer earn paychecks by playing receptionist at the front desk in between getting coffee for the men who work there. Now, that doesn’t line up with stereotypes – but, as far as I can tell, the court would slap it down anyway, so long as it fails the relevant ‘scrutiny’ test.
Wow, some fascinating reading since I left the conversation last night. I’m not even going to try and address everything that’s gone on since. But I am going to try to address this, and I hope I have some credibility in doing so by virtue of the fact that I’m neither “liberal” nor “conservative”, and the fact that I’ve participated in the system in question.
ANY system that is outcome-based in its process is a bad system, period. The reason for this is simple: what one person thinks is an “increase [in] fairness and justice” is in another person’s mind the complete opposite. You, Left Hand of Dorkness, believe that “fairness and justice” is increased when individuals gain more liberty, and are protected from the whim of governmental action. But not everyone sees that as a “fair” result. My sister, for example, considers that manifestly unfair, because it devalues her own interest as a member of society in seeing to it that society functions well, even if it means curtailing the liberty of certain individuals. My cousin considers this manifestly unfair, because in her mind, doing so tends to curtail the liberties of people like her, not to mention the liberty of what many “liberal” people would consider a non-person (unborn foetuses). “Fairness and justice” aren’t absolutes, where only one set of outcomes in a given situation is fair or just.
So in a system in which the only object is an “increase [in] fairness and justice,” the results become erratic, and based solely upon the viewpoint (and whim) of the people who have the power. Imagine if every time the Supreme Court of the United States had a shift in its ideological balance, and every time every state’s highest court had such a shift, the decisions could jettison the process for determining what was “due process”, etc.? I contend the result would be chaos. And I don’t think you would be happy, either. For example, the Court would long ago have gotten rid of Roe v. Wade, not just because process includes the idea of stare decisis, but because every subsequent decision would be able to create an entirely new framework for trying to apply the text of the Constitution. I cannot see that as something you would want: the social gains of the '50s and '60s and '70s under the Warren and Burger courts swept away by the Rhenquist and Roberts courts because they didn’t have to even acknowledge the framework for discussing those issues set in place by the Court’s efforts?
I will agree that procedure shouldn’t be everything. When you get so tied up in the knots of procedure that you cannot find a way to true justice, you are in trouble. But the Constitution of the United States is procedure, first and foremost. I, for one, when I was an attorney, was quite thankful that some agreed-upon method for making the decisions I was involved in existed, even if, from time to time, it ended up losing me my case. Far better that than winning by methodology that was certain to come and bite me on the ass in the future.
Taken to this extreme, I agree. Again, however, I’m arguing about results. Time and again over the past half-century, courts in the US have been at the forefront of increasing justice and fairness, to the extent that “activist judges” have become a bogeyman of the right. Yes, I might “imagine” a way this would go wrong; but if I’m not imagining, if instead I’m paying attention to how it’s actually gone, those “activist judges” have made the world a materially better place for a lot of people. Reining them in in the way that a lot of conservatives desire, reducing their ability interpret expansively and according to modern social norms instead of archaic ones, would historically have damaged the movement for greater justice as I see it. Therefore, as I see it, this sort of activism is salutary.
Again and again, I’m arguing in favor of the exact sort of activism Bricker is decrying in this ruling. I am NOT arguing that burning the Constitution would be a good approach, not because I fetishize procedure but because I recognize that would result in real harm to real people. But I do encourage judges to rule expansively in favor of justice and freedom as I understand them, and I consider that sort of persuasive effort (little though my persuasive powers be, admittedly) also salutary.
The huge problem with your post is that once in a while the ‘living’ are straight up evil and ignore the moral and ethical precepts of those who came before. Think Maoists, Stalinists, Nazis, Hutu Rwandans and Ottoman Turks.