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.
Besides which, the case 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.
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.
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?
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]
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.
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
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…
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…
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?
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.
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.
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.
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.
I wonder if the frustration felt by T folk is understood by anyone. Its too bad that the ENDA only applies to GLB.
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.
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.
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 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.
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.
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.
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
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?
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.
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”.
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…