The “challenges and effects” are precisely what would be put forward as their Rational Basis for precluding polygamy.
Personally I think the Rational Basis test is an absurdly low bar to the point of meaninglessness in current jurisprudence. I have argued here in the past I think it should actually have to be rational. Unfortunately the US government and legal system does not answer to me.
Rational Basis is what it is and what we have to deal with it. Under Rational Basis it is trivial for a state to ban polygamy. Polygamists would have to elevate their class to Intermediate Scrutiny at the least and I see no way for them to do that.
Strassia, I predict that ban on two partner marriages will eventually change or marriage will become something that few people care to do. The discrimination against single males alone is justification for overhauling it all.
The original ban was to reject Mormons and Native Americans in favor of Christian law.
Polygamists are not a protected class - no one argued they were - but it doesn’t mean they won’t be in the future. Homosexuals and black people used to not be a protected class.
Homosexuals are still not a protected class else SSM would be a reality. (arguably they should be but that is a different thread.)
Black people you are correct. For a long time they were not a protected class. They are now though (or rather race is a protected class so being “white” or whatever color is likewise protected).
IIRC protected classes came as a result of Korematsu v. United States which challenged internment of Americans of Japanese descent during WWII.
Constitutional rights are not absolute. The courts need to discern where lines are drawn. Obviously this leads to arbitrariness which the law loathes. In theory everyone is dealt with equally and the rules are applied evenly (I said “in theory”).
As such the courts have devised mechanisms to see if a given right in the Constitution is trampled on or if it is a permissible restriction.
For Equal Protection, love it or hate it, the courts chose to make three classes:
Rational Basis
Intermediate Scrutiny
Strict Scrutiny
Rational Basis is shit as a class and provides us nearly no protection. The other two provide a lot of protection but are exceedingly narrow.
Homosexuals have a good case to be made for intermediate scrutiny (I’d posit even Strict Scrutiny but that might be an overreach). Polygamists are stuck firmly in Rational Basis land and have no way out I can see.
Which means (legally) they are fucked.
Personally, till they solve numerous problems with polygamy, I am ok with that.
Hate crime laws come from jurisdictions choosing to enact hate crime laws. Whether homosexuals are a protected class under federal equal protection legislation is a different question indeed.
And they are not. Officially speaking, laws discriminating against homosexuals receive rational basis analysis. Of course, nothing is that simple. While the Court has been very clear it is not giving heightened scrutiny based on sexual orientation, Romer appears to set up a fourth level of scrutiny in between ration basis and intermediate scrutiny (that given to sexually based discrimination). While it is called rational basis, it actually appears to be rational basis with teeth.
We’ll get soon to a situation where sexual orientation is a protected class in a formal way. But we aren’t there yet.
Are there federal hate crimes laws covering sexual orientation?
Anyway, I see what you are talking about - the thing is “protected class” is a term of art in these discussions. It specifically refers to receiving a degree of scrutiny greater than rational basis scrutiny under Equal Protection analysis.
I’ve always hated the rational basis argument. Take a hypothetical law X. A state legislature passed it by a majority in each house. The governor signed the law, or he vetoed it and the legislature passed it by a 2/3 majority.
Now, unless they were all mental patients flinging excrement at each other while debating the law, they had SOME reason for passing it.
For a court to sit in judgment and say that law X has no rational basis seems to that instead of establishing judicial review for constitutionality, they are simply acting as a type of super legislature deciding for themselves on the wisdom of such law.
This is bad because judges are unelected and have life tenure. If your state legislature is acting irrationally, you have a much better mechanism for replacing them: the ballot box. If judges start acting irrationally, you are screwed. That’s why I feel that they shouldn’t take on legislative functions.
It is my understanding that something passes Rational Basis if the state can express a rationale for the law. As you just noted passing the law means they had a rationale. Therefore Rational Basis provides pretty much no protection whatsoever.
As such your worry is unfounded. (I wonder if anything has ever failed a rational basis test before the court…I would imagine it has happened but I also suspect it is particularly rare.)
The heightened levels of scrutiny explicitly define what groups are in those categories and there are not many of them. The courts feel that any law which discriminates on those categories of people are definitionally suspect and the state needs to come up with a far more compelling rationale as to why the given law is necessary. The vast majority of groups (pretty much all save the handful defined for heightened scrutiny) fall under Rational Basis).
Passing a law isn’t a rationale under rational basis analysis. Pretty much any rationale will work, however, but the Court has ruled that animus to a group isn’t sufficient rationale even under that lever of scrutiny. (See Romer).
But isn’t that why Romer has been criticized? (Criticized in the legal sense, not for what it did) It purports to apply rational basis, but adds so much teeth to the analysis that it really doesn’t; it applies a much higher standard.
I mean the law at issue (a Colorado amendment prohibiting the state or municipalities from passing anti-discrimination laws against gays) could have at least a handful of rational purposes apart from simple animus, even if you disagree with them. For example:
Anti-discrimination laws cost money to enforce, to defend against civil suits, and to hire administrators to create regulations. The state needs to save money, so I don’t want any more of these types of laws to be passed.
Now, agree or disagree, but that point is still rational, is it not?
First, there is the simple, clear cut finding that animus against a class does not meet the burden of the rational basis test. Congress passing a law saying red haired people cannot go outside after 8 pm fails, if the reason given is that red heads suck.
Second, there’s the question of whether Kennedy applied the Rational Basis test to the law at question. He probably didn’t. He applied a whole new level of scrutiny, Rational Basis with Teeth, as it is often called. He found that specious reasons would not suffice for discrimination against homosexuals, presumably because there wasn’t a majority for a finding of enhanced scrutiny for discrimination based on sexual preference.
My guess (read that again…just my opinion and IANAL or judge) is that Rational Basis is light years away from Intermediate Scrutiny in terms of protections to a group. The three levels of scrutiny are too coarse to cover society’s needs.
Remember the levels of scrutiny are things the court just made up. In trying to do their job they realized no right is absolute but they need a metric to determine when and where something falls to one side or the other of exercising that right.
EP levels of scrutiny are a wholly fabricated, magicked up test by the courts. But the courts need such guidelines so everyone is on the same page. Otherwise you would end up with disparate results from different judges all over the place. That is a Bad Thing[sup]tm[/sup].
Romer (IMHO) is starting to recognize that there are groups for which Rational Basis is a stupidly low standard that anyone can pass but not wanting to apply the far more strict scrutiny that is the next step (Intermediate Scrutiny).
Personally I think sexual preference could meet Strict Scrutiny standards but society/courts are nowhere near going there yet. This is a baby step in that direction.
I found his conclusion to be terribly disingenuous. First, Colorado provided a laundry list of rational reasons for the law other than, “We hate fags.” Kennedy simply dismissed them because he disagreed with them; something which is a legislative priority.
It was also completely devoid of any sense at all. At the time Bowers was still the controlling law. Kennedy’s opinion let stand an idea that you could criminalize activity X, but not pass laws disallowing favorable treatment for people engaged in activity X. There was no logical reason to allow Bowers to stand and rule the way he did in Romer.
I mean, all laws show animus towards the group of people who violate them. Laws against rape show animus towards rapists. Of course, there are many, many, many rational bases for these laws, but if you compare them to other laws that are held to be valid, laws against homosexuality also have rational bases apart from animus, but when presented with them, Kennedy puts his hands in his ears and screams “nah, nah, NAH” simply because he disagrees with them.
You are making a mistake here. The part from me you quoted is a simple statement of law. Animus doesn’t meet the rational basis test. Now it is possible to argue that Kennedy didn’t apply that right, but the conclusion that animus isn’t enough isn’t disingenuous at all.
OK - fundamental errors in this. The law at issue wasn’t disallowing favorable treatment for anyone, it was about disallowing the prevention of discrimination against a group. It’s absolute bullshit (though way too common) to maintain anti-discrimination laws are about giving favorable treatment or special rights to a group.
While it is true that sodomy could be criminalized at the time of Romer, you miss the mark again for two reasons. First, I am pretty certain sodomy was not illegal in Colorado at the time. And more importantly, while sodomy could be criminalized, homosexuality could not. The law at question was not about discriminating against those who participate in sodomy, it was about discriminating against homosexuals. Homosexuality isn’t an activity.
Of course laws do. And that isn’t what Kennedy said in Romer. He said that animus alone is not sufficient. A law against rape shows animus to rapists, that is true. But a law which said rape is illegal, and was justified simply by the statement “rapists suck” would not pass muster.
Right. Bowers was a due process case about criminalizing sodomy. It wasn’t an equal protection case. Whatever it stood for, it didn’t say that a person’s identity as a homosexual was a legitimate grounds for discrimination in housing, employment, education, services, and everything else. Colorado’s “laundry list” of rational reasons basically boiled down to, as I recall, the claim that it was protecting the interests of its citizens who were opposed to homosexuality. The amendment basically said that citizens who wanted to discriminate ought to be protected, by rolling back anti-discrimination statutes already on the books in various municipalities in the state.
If we’re going to call anti-discrimination measures special favorable treatment, we might as well acknowledge that this was essentially a special right to discriminate granted to (apparent) minorities in Boulder and Denver and wherever else.
Of course anti-discrimination laws allow for favorable treatment. By default, we can discriminate against anyone. If I own a business, I can refuse to hire and therefore discriminate against people who don’t have the right education, who fail drug tests, who look ugly, who have poor personal hygiene, who lie on their resume, who I heard was a poor worker, because they have a mole in the center of their face, is an alcoholic, have a poor grasp of English, etc. Discrimination happens every day when I decide whether I want a salad or a sandwich for lunch.
What an anti-discrimination law does is exempt a group or groups of people from the above fray. It says that it is illegal for a person to take into account (characteristic X) when determining (who to hire, who to serve in a restaurant, etc.). By implication, people who fall in these groups have privileges above and beyond any and every other person who falls outside of these groups but have a different unfavorable characteristic that is not “special” enough to be covered by such laws. I am not against Civil Rights laws, but I can’t for the life of me see how they don’t confer something “extra.”
It may not have been illegal, but it just as easily could have been. Your second point seems like a thin distinction. You can criminalize the act, but you can’t show disfavor to a group of people who by their own admission engage in such act? For example, you could make bank robbery illegal, but you can’t pass a law saying that no anti-discrimination laws will be passed against the Colorado Bank Robbers Society who admit engaging in illicit bank robbery?
I guess we are just talking past each other. No state passes laws just because they think that a certain group just sucks. Kennedy ignored everything Colorado presented and came up with a “No shit, Sherlock” conclusion that didn’t address anything presented in the argument.
It would be like you saying that you want to pass this law outlawing selling cocaine to 11 year olds, me listening for your thousand reasons why this is good, and me saying, “Villa, you can’t just pass laws because of your personal animus towards merchants.”
No really, they don’t. What they do is say you as a restaurant owner can choose not to serve a black person, but not because they are black. A special right would be that you cannot choose not to serve a black person for a reason that you could refuse to serve someone else. It’s not a special right because it is also saying a person may not be refused service because they are not black. Just as the rules they were trying to prevent in Colorado would prevent discrimination against ALL people based on sexual orientation.
Again, you are making a massive error here. As I told you, being a homosexual could not be criminalized. A homosexual does not by his own admission engage in sodomy. Just as a nun may claim to be heterosexual, but does not by admitting heterosexuality, admit to engaging in sex. Unless you are maintaining that it is impossible for a homosexual to be celibate.
Again, you are missing the point. It is possible to argue, and I would agree, that Kennedy didn’t apply the test he claimed to be applying. But that doesn’t affect the test itself.
First, even if this is true, it doesn’t apply to Romer. Colorado specifically singled out homosexuals as a special class of non-protectable people. Even if a law saying don’t discriminate is special treatment, Amendment 2 didn’t just decline to afford that special treatment to homosexuals. It specifically said that under no circumstances is anyone allowed to protect homosexuals, despite the fact that certain municipalities had already elected to do so. This is special treatment in the opposite direction - Colorado doesn’t have any other special groups of people who aren’t allowed to be protected. It’s still an inequality leveled at homosexuals.
Second, it isn’t really true. Not everyone is on equal footing. We’ve already had plenty of historical lessons about the way inequality and discrimination work in practice. Opposition to anti-discrimination laws on the grounds that they afford special status is used as justification for an unequal status quo. If discrimination didn’t exist in unequal measure from one group to the next, “Equal Protection” wouldn’t even be a thing. There’s nothing “special” given to a black man by saying to a white man that the latter can’t own the former, or has to let him into his schools, and so on. You aren’t handing anything to a group that’s been discriminated against that wasn’t theirs to begin with, constitutionally speaking. Enforced equality isn’t a gift to the person who’s been subject to an inequality.
No, probably not, at least not to the extent that the discrimination is on the basis of those people’s identity and not their conduct, which you didn’t make clear. More to Kennedy’s point, has anyone ever tried anything remotely like that? Or did Colorado do something that doesn’t resemble anything any legislature ever tried before (which “fails, even defies,” the conventional Equal Protection analysis)?
