Race was the directly intended target of the Fourteenth Amendment. Gender was not – indeed, if it were, why was the Nineteenth Amendment even necessary?
Because gender has had an area carved out for it by judicial action already, it seems the least violent approach is to analogize sexual orientation to gender. I don’t analogize it to race because there’s no historical or textual support for that view.
I fully admit this is not a textualist answer. But the texualist answer can’t always be applied when the backdrop of controlling precedent is itself not textually-based.
Just to point out, though, that the Nineteenth Amendment isn’t analogous to the Fourteenth Amendment, but to the Fifteenth Amendment. One could make the argument that the existence of the Fifteenth Amendment merely shows that the protections of the Fourteenth don’t apply to voting.
The 15th Amendment speaks directly to racial discrimination. As for the 13th and the 14th – I guess they’re limited to racial-discrimination cases because of some subtle penumbral emanation, cause darned if I can find any relevant mention of race in the text (unless there’s some way to stretch the “Indians not taxed” thing far enough to cover it):
I’m not sure where “immutability” comes into it; religion, for example, is clearly not an immutable characteristic. (As for race, let’s just say that the obvious Michael Jackson jokes have been made and move on.)
The 14th, unlike the 15th and 19th, has nothing to do with voting rights. That’s why we needed a 15th and, later, a 19th.
So, when interpereting the EPC and applying it to laws, what are the reasons given for applying strict scrutiny to those laws that discriminate on the basis of race? Are you saying the sole consideration is that the 14th was targetted at race discrimination, even though the 14th (unlike, say the 15th) makes no mention of race? Have courts not focussed on any other aspect of race and the nature of discrimination based on race? If courts have expanded the inquiry beyond what was “targeted” by the 14th, then how would that analysis apply to discrimnation based on sexual orientation?
It seems to me like you’re trying to have your cake and eat it too. Boldly proclaim the standard should be intermediate scrutiny (with no anaylsis) so you don’t seem unenlightened, yet offer no real protection to the victims of sexual orientation based discrimination. Am I the only one who reads it this way?
In all fairness, the plagues of locusts, civil unrest, coup attempts, meteor strikes, and complete breakdown of civilization in Canada since we legalized it does make it hard to come up with examples, what with having to send heavily armed raiding parties into the radioactive rubble to find the few remaining records of the Last Times.
Well, you’ve certainly picked up one key fact: I do indeed craft all my posts with the goal of seeming enlightened to this community, as my frequent readers will undoubtedly attest. :rolleyes:
Nor do I agree that my statement was borne of “no analysis.” To the contrary, I’ve noted that sexual orientation is related to gender, both because it’s a (generally) immutable characteristic and because gender and sexual desire are inextricably intertwined.
It seems to me that your objections to intermediate scrutiny for sexual orientation apply with equal force to using intermediate scrutiny on matters of gender discrimination – don’t they?
(bolding mine). I’m sorry but I think that’s an extremely weak argument. Just because both gender and sexual orientation have some identifying characteristics involving sex organs, the basis of discrimination are completely different. The state may a legitimate interest in treating the sexes differently. Seems to me, the point is that it does not have any legitimate reason to treat homosexuals differently. In this regard, sexual orientation (as a class) is more like race than gender, IMO.
Freedom of it, and freedom FROM it - the freedom to believe whatever you want is explicitly protected. However, unlike the “christian america” types want, it is not officially sanctioned or enforced or supported. The flip side of that is, that laws shall not be enacted for religious reasons.
