# Equal Under The Law, Ha! **URL:** \ **Category:** The BBQ Pit\ **Created:** [August 7, 2001, 9:15pm UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356 "2001-08-07T21:15:06Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![OxyMoron](https://avatars.discourse-cdn.com/v4/letter/o/e9a140/32.png) [@OxyMoron](https://boards.straightdope.com/u/OxyMoron)\ **Post date:** [August 8, 2001, 3:08am UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/21 "2001-08-08T03:08:50Z")
> [@](#): > > \*Originally posted by goboy \* > \*\*Judges have fairly broad latitude to interpret the Constitution. In 1896, the Supremes ruled in \*Plessy vs. Ferguson \* that racial segregation was Constitutional as long as the facilities were equal. In 1954, the Court reversed itself in _Brown vs. Topeka_. The Court ruled in _Minersville vs. Gobitis_ in 1940 that schools could compel children to salute the flag. The Court reversed itself in _West Virginia vs. Barnette_ a mere three years later. To my simple, backward intellect, the 14th Amendment, Section 1, reads, in part: > > > [@](#): > > > > …nor shall any State deprive any person of life, liberty, or property, without the due process of law; **nor deny to any person within its jurisdiction the equal protection of the laws.** It doesn’t say “this doesn’t apply to homos.” > > Gay people are persons within the jurisdiction of the several States; where’s the equal protection? > > \*\* Some points: 1. Bear in mind that the announcement of Major New Constitutional Rights is something lower courts usually prefer to leave to the Supremes, and your proposal would unquestionably act as a major extension of existing 14th Amendment jurisprudence. Of course, that leads to the small conundrum **Sua** noted, which is that the Court in its current complexion will recognize such an extension on about the 15th of Never. 2. Besides which, the [case](http://www.ca3.uscourts.gov/opinions/001261.txt) in question arises not under the Constitution, but under Title VII of the Civil Rights Act of 1964. There’s no 14th Amendment right to a harrassment-free private workplace. That right exists only as a creation of Title VII, which covers a litany of illegal bases _not_ including sexual orientation. 3. The existence of the ENDA proposal further underscores the conclusion that Title VII doesn’t somehow indirectly cover sexual orientation - Congress obviously doesn’t think that Title VII (_which it wrote_) currently prohibits antigay discrimination. It’s why we need ENDA. ---
**Author:** ![Freyr](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/freyr/32/5763_2.png) [@Freyr](https://boards.straightdope.com/u/Freyr)\ **Post date:** [August 8, 2001, 3:13am UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/22 "2001-08-08T03:13:43Z")
\*\*Captain Amazing wrote: I dunno…ENDA’s been getting closer and closer to passage every year. I’m not saying it’ll happen this year or the next, but don’t give up hope.\*\* I just hope I have all of my teeth when it happens. Given Congress’s record on such matters (how long was it between the Emancipation Proclaimation and the Civil Rights Act of 1964?) I’m not going to hold my breath. I hope you can understand the frustration felt by the GLBT community when such basic legal protections are afforded to other groups yet we must wait because Congress hasn’t seen fit to act on it. In fact, a sizable portion of Congress actively campaigns against it. Why must we wait to be treated like equal citizens? A hypothetical question; suppose I show up at the polls with an “Out and Proud” T-shirt on. The manager of the polling place sees this and denies me a ballot, saying that as a homosexual, I shouldn’t be allowed to vote. Is this illegal? Since sexual orientation isn’t (I believe) listed as protected class or specific category and is the specific reason for not allowing me to vote, would I have any legal recourse? ---
**Author:** ![Medea\_s\_Child](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Medea\_s\_Child](https://boards.straightdope.com/u/Medea_s_Child)\ **Post date:** [August 8, 2001, 3:15am UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/23 "2001-08-08T03:15:44Z")
Hmmm…now here’s a plan. Rather than force a fired gay person to take it to the supremes, lets have a straight couple get fired because of orientation and take it on up. I’ll even voluteer to get fired. And sleep with some guy to do it. Is this another form of sleeping my way to the top? Random late night thoughts aside, this sucks. I freely admit I thought that such protection was already in place and am **Really Peeved** that I was wrong. (I have this thing where I think that what is logical to me has already been accepted as truth by those in power. It makes for a lot of disapointments…) Still, I’d like to see the Supreme Court say its okay for someone to be fired for sleeping with their heterosexual spouse. [sub]aren’t you all glad you got this look at how my mind works when tired _and_ wired? No, um…nevermind then…sorry…[/sub] ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [August 8, 2001, 3:26am UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/24 "2001-08-08T03:26:57Z")
> [@](#): > > \*Originally posted by Freyr \* > A hypothetical question; suppose I show up at the polls with an “Out and Proud” T-shirt on. The manager of the polling place sees this and denies me a ballot, saying that as a homosexual, I shouldn’t be allowed to vote. Is this illegal? Since sexual orientation isn’t (I believe) listed as protected class or specific category and is the specific reason for not allowing me to vote, would I have any legal recourse? Of course you would. No one has any right to deprive you of something that you are legally entitled to. This applies to to stealing your car because you are gay, as well as depriving you of your vote because you are gay. The issue with jobs is that no one is legally entitled to have a job. So it is only a matter of discrimination, which depends on applicable laws. ---
**Author:** ![gobear](https://avatars.discourse-cdn.com/v4/letter/g/8dc957/32.png) [@gobear](https://boards.straightdope.com/u/gobear)\ **Post date:** [August 8, 2001, 3:45am UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/25 "2001-08-08T03:45:06Z")
> [@](#): > > Of course you would. No one has any right to deprive you of something that you are legally entitled to. Who says gays are legally entitled to vote? The 15th Amendment only says that the right to vote can’t be taken away because of race, color, or having been a slave (it says “previous condition of servitude” but it means “slave”) Gays aren’t mentioned specifically in the Voting Rights Act of 1965, although it does say in Sec. 12 > [@](#): > > (a) No person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote under any provision of this Act or is otherwise qualified to vote, or willfully fail or refuse to tabulate, count, and report such person’s vote. But that could be gotten around by an individual state passing a “Fags Can’t Vote” law, which would invalidate the “qualified to vote” bit. Not that such a thing would ever happen, but it could… ---
**Author:** ![Esprix](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/esprix/32/7899_2.png) [@Esprix](https://boards.straightdope.com/u/Esprix)\ **Post date:** [August 8, 2001, 4:25am UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/26 "2001-08-08T04:25:23Z")
Um, yer not gonna believe this… but I dated the plaintiff in that case. 🙂 What seems to be lost in the headline is that he was _harassed_ and ultimately fired, and the union did nothing to support him. Shame, too - hell of a nice guy. Jeez, I haven’t thought about him in quite some time… The full story can be found [here](http://www.planetout.com/news/article.html?2001/08/06/2). Wasn’t there a case in Texas where an oil rig worker, who was straight, was harassed for having been _perceived_ as gay and won? Or perhaps that was just sexual harassment law and not unlawful termination? Esprix ---
**Author:** ![Linear\_Crack](https://avatars.discourse-cdn.com/v4/letter/l/8e7dd6/32.png) [@Linear\_Crack](https://boards.straightdope.com/u/Linear_Crack)\ **Post date:** [August 8, 2001, 4:39am UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/27 "2001-08-08T04:39:41Z")
[QUOTE] \*Originally posted by goboy \* \*\* > [@](#): > > Who says gays are legally entitled to vote? > \*\* Who says they are not legally entitled to vote? I don’t remember having to check the “gay” or “straight” box on my voter registration card. Do you? On a side note: Disagreeing with **you** _does not_ equal **homophobic**. Seems to be a trend of yours. Carry ON. ---
**Author:** ![matt\_mcl](https://avatars.discourse-cdn.com/v4/letter/m/7ab992/32.png) [@matt\_mcl](https://boards.straightdope.com/u/matt_mcl)\ **Post date:** [August 8, 2001, 4:52am UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/28 "2001-08-08T04:52:14Z")
Well, all I can say is, you’re welcome up here. ---
**Author:** ![grendel72](https://avatars.discourse-cdn.com/v4/letter/g/91b2a8/32.png) [@grendel72](https://boards.straightdope.com/u/grendel72)\ **Post date:** [August 8, 2001, 4:55am UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/29 "2001-08-08T04:55:46Z")
> [@](#): > > \*Originally posted by Linear Crack \* > Who says they are not legally entitled to vote? > > I don’t remember having to check the “gay” or “straight” box on my voter registration card. Do you? > \*\* Sorry to butt in, but that is like saying that prior to the “defense of marriage act” [sub]thanks a fuckin’ lot bill[/sub] gays could legally be married. Look at it another way, if some backwoods fuck like Jesse Helms wanted to make it illegal for gays to vote there would be nothing to stop him. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [August 8, 2001, 5:44am UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/30 "2001-08-08T05:44:19Z")
> [@](#): > > \*Originally posted by goboy \* > Judges have fairly broad latitude to interpret the Constitution. In 1896, the Supremes ruled in \*Plessy vs. Ferguson \* that racial segregation was Constitutional as long as the facilities were equal. In 1954, the Court reversed itself in _Brown vs. Topeka_. Fisrt they said that racial segregation was legal if it is equal. Then they said that racial segregation was not equal, and therefore unconstitutional. I don’t see how they “reversed” themselves. > [@](#): > > To my simple, backward intellect, the 14th Amendment, Section 1, reads, in part: > > > [@](#): > > > > …nor shall any State deprive any person of life, liberty, or property, without the due process of law; **nor deny to any person within its jurisdiction the equal protection of the laws.** It doesn’t say “this doesn’t apply to homos.” > > Gay people are persons within the jurisdiction of the several States; where’s the equal protection? What are you talking about? Where is the **unequal** protection? Homosexuals are given as much protection as heterosexuals are under the law. Yes, homosexuals need the protection more, and the lack of protection given to **both** groups is felt more strongly by homosexuals, but that does not change the fact that the law itself does not distinguish between different orientations. Had the situation been reversed, and a homosexual had fired an employee for being straight, the court would have made the same ruling. The 14th amendment merely says that the government will treat people equally; it never says that the government will force other people to treat each other equally. One might as well ask why it is that the government not stepping in and preventing a Christian organization from refusing to hire atheists doesn’t violate the 1st amendment. > [@](#): > > But that could be gotten around by an individual state passing a “Fags Can’t Vote” law, which would invalidate the “qualified to vote” bit. > Not that such a thing would ever happen, but it could… Actually, considering that in some states sodomy is a felony, and in some states felons can’t vote, I guess they already have. It’s clear that we have a ways to go in providing equality to our citizens, but seeking to change that with undemocratic means is a dangerous strategy. ---
**Author:** ![Sterra](https://avatars.discourse-cdn.com/v4/letter/s/8c91f0/32.png) [@Sterra](https://boards.straightdope.com/u/Sterra)\ **Post date:** [August 8, 2001, 5:51am UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/31 "2001-08-08T05:51:11Z")
> [@](#): > > I hope you can understand the frustration felt by the GLBT community when such basic legal protections are afforded to other groups yet we must wait because Congress hasn’t seen fit to act on it. In fact, a sizable portion of Congress actively campaigns against it. Why must we wait to be treated like equal citizens? I wonder if the frustration felt by T folk is understood by anyone. Its too bad that the ENDA only applies to GLB. > [@](#): > > On a side note: Disagreeing with you does not equal homophobic. Seems to be a trend of yours. Now thats a first. Could you show where the word homophobic appears before you said it? Could you even show where a doper is accused of such a thing in this thread? A person could always argue that the discrimination was actually based on their sex. If the person in this case was a girl then he would not have been fired. ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [August 8, 2001, 10:44am UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/32 "2001-08-08T10:44:07Z")
**goboy** et al, I don’t know if the gov could pass a law barring gays from voting. The scenario described by **freyr** , and to whicj I responded, was that of being barred from voting based on the whim of the manager of the polling place. **Sterra** , I would guess that **Linear Crack** is referring to the final line of the OP. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [August 8, 2001, 2:16pm UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/33 "2001-08-08T14:16:36Z")
The government could not pass a law barring gays from voting, under two independent lines of reasoning/precedent. The first thing y’all have to understand is the government action has different rules than private action. The case in the OP concerned the actions of a private employer. The fact that the private employer could get away with what he did has no bearing on what the government can and cannot do. Under the current law, homosexuality is simply a characteristic with little legal relevance, like having blue eyes (not quite an accurate analogy, but close enough for these purposes). An employer freaked out by blue-eyed people can legally fire them. OTOH, the government cannot pass a law barring blue-eyed people from purchasing a car. Such a bar does not bear a “rational relationship to a legitimate governmental function.” Ditto for homosexuals. The second line of reasoning is that voting is a fundamental right. Fundamental rights can only be abridged if the law abridging it is “narrowly tailored to advance a compelling governmental interest”. There is no compelling governmental interest in prohibiting homosexuals to vote. Sua ---
**Author:** ![gobear](https://avatars.discourse-cdn.com/v4/letter/g/8dc957/32.png) [@gobear](https://boards.straightdope.com/u/gobear)\ **Post date:** [August 8, 2001, 2:50pm UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/34 "2001-08-08T14:50:15Z")
**Sua Sponte** and **The Ryan** , thanks for the good counterarguments. One of the benefits of the SDMB is being able to hone one’s reasoning skills against sharp intellects so that one can become a better debate. I still maintain that it is unjust to be dismissed from one’s job for reasons unrelated to job performance, especially for something so personal as one’s sexual orientation, or for that matter, the color of one’s eyes. Oh, and **Linear Crack** , go fuck yourself, preferably with something rusty and jagged. I have called no individual Doper in this thread a homophobe, so you had better fuckin’ apologize. The reference to SDMB homophobes in the OP is based on the supposition that in a message board this large, there are at least one or two folks who are homophobic. And you’re a liar when you say I use the term ‘homophobe’ to smear people who disagree with me. Hell, people disagree with me constantly, doesn’t make them homophobes, and I’ve defended posters who have been called homophobic by others. I save the term ‘homophobe’ for people who hate and fear homosexuals. If you think it fits you, that’s not my problem. ---
**Author:** ![OxyMoron](https://avatars.discourse-cdn.com/v4/letter/o/e9a140/32.png) [@OxyMoron](https://boards.straightdope.com/u/OxyMoron)\ **Post date:** [August 8, 2001, 3:25pm UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/35 "2001-08-08T15:25:30Z")
> [@](#): > > \*Originally posted by Esprix \* > \*\* > > Wasn’t there a case in Texas where an oil rig worker, who was straight, was harassed for having been _perceived_ as gay and won? Or perhaps that was just sexual harassment law and not unlawful termination? > > Esprix \*\* Ah, _Oncale v. Sundowner Offshore Services, Inc._, 523 U.S. 75 (1998). The Third Circuit analyzed that case in their dismissal - follow the link from my prior post. Y’see, Title VII forbids employment discrimination “on account of sex.” Accordingly, the Supremes in _Oncale_ reasoned that same-sex harrassment is actionable, but only if it amounts to harrassment “on account of sex” - needless to say that’s a difficult concept. Your ex made a critical concession by acknowledging that the alleged discrimination was based exclusively on sexual orientation, and not on gender. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [August 8, 2001, 4:17pm UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/36 "2001-08-08T16:17:00Z")
> [@](#): > > \*Originally posted by IzzyR \* > \*\*Yes, but they cannot do this _arbitrarily_. IOW the fact that a judge may want something to be the law does not make it so. \*\* In theory, of course, a judge shouldn’t and can’t act arbitrarily (although it’s happened in the past, sometimes), but what I had meant was that it was possible the court could have said, “Well, even though in the past, law X hasn’t been understood to apply to homosexuals, we can see it really does.” That sort of stuff happens more often. And Freyr, remember, it was only 4 years between the Emancipation Proclamation and the Civil Rights Act of 1866. Of course, the supreme court later decided the act was unconstitutional, but… I do understand your frustration, but so far 11 states have passed employment non discrimination laws, and each year, ENDA gets closer and closer to passage, so, keep on brushing and you probably will have all your teeth when it passes. ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [August 8, 2001, 5:58pm UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/37 "2001-08-08T17:58:44Z")
> [@](#): > > \*Originally posted by Captain Amazing \* > In theory, of course, a judge shouldn’t and can’t act arbitrarily (although it’s happened in the past, sometimes), but what I had meant was that it was possible the court could have said, “Well, even though in the past, law X hasn’t been understood to apply to homosexuals, we can see it really does.” That sort of stuff happens more often. Yeah it does. But you still have to have some valid basis for deciding that such is the (interpretation of the) law. You cannot use the fact that you find something repugnant as a basis for deciding that there **must** be some law that it violates. Yes, it happens. aka judicial activism. **Sua** says > [@](#): > > Judicial activism is a very scary concept right now, with all the Reaganite and Bushie judges on the bench. If those judges could ignore the law, can you imagine some of the scary decisions we would get? Does this mean that your opinion of judicial activism varies based on who is in control of the judiciary? Or are you just commenting on how “scary” it is at different times? ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [August 8, 2001, 6:44pm UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/38 "2001-08-08T18:44:37Z")
Dammit, **Sua** , how come you always make all the good points before I get here? For the reasons already discussed, the 3d Circuit was correct to dismiss this case under current laws. I find it somewhat heartening that they bothered to put in the language about the odiousness of discrimination, actually, since they sure couldn’t actually read it into the Civil Rights Act under existing jurisprudence. **goboy** is absolutely correct that the result is unjust, but that’s due to a failure on the part of Congress, not the courts. I find judicial activism worrisome no matter who’s doing it, and I applaud the 3d Circuit for refraining. **Esprix** , do you know if the plaintiff took any action against the union? If they were contractually obligated to fight for him and didn’t, maybe he can get some relief there, even though the employer’s actions weren’t illegal. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [August 8, 2001, 8:12pm UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/39 "2001-08-08T20:12:01Z")
> [@](#): > > \*Originally posted by IzzyR \* > **Sua** says > > > [@](#): > > > > Judicial activism is a very scary concept right now, with all the Reaganite and Bushie judges on the bench. If those judges could ignore the law, can you imagine some of the scary decisions we would get? > > Does this mean that your opinion of judicial activism varies based on who is in control of the judiciary? Or are you just commenting on how “scary” it is at different times? \*\* Decisions not based in law and precedent, or in the warranted “extension, modification, or reversal of existing law or the establishment of new law”, to quote the Federal Rules of Civil Procedure, are always a bad idea, regardless of whether I like the result. That being said, “judicial activism” is a meaningless phrase. In the common-law system, judges have always “legislated from the bench”, as is demonstrated by the very idea of precedent. When an issue of law is uncertain, parties go to court to establish what the law is, and the precedent thus made applies beyond the bounds of the case. “Judicial activism” is only a bad thing when the law thus established does not conform with the tenets of jurisprudence, and the correct term really should be “unfounded decisions”. Sua ---
**Author:** ![Superdude](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/superdude/32/13450_2.png) [@Superdude](https://boards.straightdope.com/u/Superdude)\ **Post date:** [August 8, 2001, 8:22pm UTC](https://boards.straightdope.com/t/equal-under-the-law-ha/75356/40 "2001-08-08T20:22:27Z")
> [@](#): > > \*Originally posted by Medea’s Child \* > **I’ll even voluteer to get fired. And sleep with some guy to do it.** And I’ll volunteer to be the guy you sleep with. [Previous page](https://boards.straightdope.com/t/equal-under-the-law-ha/75356.md?page=1) [Next page](https://boards.straightdope.com/t/equal-under-the-law-ha/75356.md?page=3)