Tag Archives: equal protection

What Kind of Equality?

Yesterday, I participated in a panel discussion on equality. The panel was part of the 10th Annual O’Bannon Institute for Community Service, held at Ivy Tech Community College in Bloomington.

Our panel’s charge was very broad: we were supposed to discuss “equality” and consider America’s progress toward achieving it. In addition to me, the panel included a retired Pastor who heads the Bloomington Human Rights Commission, a social worker who founded and runs an organization called “Fair Talk” focused on equal rights for GLBT folks, and an 86-year old former football star who was the first African-American recruited by the NFL.

Beyond sharing stories from our different perspectives, we confronted a question: what do we mean by equality? No two people, after all, are equally smart, equally good-looking, equally talented or hardworking. What sorts of equality can we reasonably expect to achieve?

At the very least, we agreed that all Americans are entitled to equality before the law. Laws that disadvantage people based upon race, religion, ethnicity, gender or sexual orientation—laws that treat people differently simply based upon their identity—cannot be justified. America’s greatest promise has been that our laws treat individuals as individuals, and not as members of a group. As a country, we are making progress toward that goal. The progress is halting, and the culture sometimes lags, but we’re getting there.

That’s the good news. The bad news, as the pastor reminded us, is that inequalities of wealth and power in this country are enormous and growing. The wealthiest Americans not only control a huge percentage of the country’s resources, their wealth also allows them to exercise disproportionate political power. America is in real danger of becoming a plutocracy.

I hasten to assure my readers that there weren’t any socialists on that panel; no one was advocating class warfare or massive redistribution of wealth. We all understand the benefits of market economies, and recognize that inequalities are inevitable in such systems. The problems arise when the inequities become too large, and when they are seen as the product of privilege and status rather than entrepreneurship and/or diligence. It is then that they breed social resentment and create political instability.

America is doing a reasonable job of leveling the legal playing field. But you can’t eat legal equality, you can’t pay the rent with it, and it won’t cure cancer.

 

 

 

Sauce for the Goose

Yesterday’s post about the effort to expose the “reasoning” behind Senate Bill 371 got me thinking about equal treatment and its notable absence from other brilliant proposals currently wending their way through Indiana’s legislative process. (As you may recall, SB 371 “protects” women who want prescriptions for abortion pills, and the proposed amendment would similarly have “protected” men wanting pills for erectile dysfunction.)

For example, what would a more balanced approach mean for the bill requiring drug testing of welfare recipients?

So far, the arguments against that measure have been boring–the typical logical, evidence-based objections that routinely fail to persuade our lawmakers. The Indiana Coalition for Human Services, for example, has pointed out that Florida implemented such a program and found it to be ineffective and costly (only 2% tested positive). Others have noted that the available tests are not well-suited for a “pass/fail” situation. Legislative Services estimates the first-year cost to be 1.2 million, much more than is likely to be saved. Etcetera.

Wrong arguments! Logic has rarely prevailed at the Statehouse, and cost-effectiveness is not a concept embraced by our elected culture and class warriors.

So I say, pile on! Not only should TANF recipients be tested, so should all the other welfare moochers who are enriching themselves at taxpayers’ expense. Let’s start with corporate welfare, with the beneficiaries of crony capitalism–the coal-gasification boondoggle,the business enterprises that have persuaded lawmakers to grant them favorable tax treatment, the owners of sports teams we subsidize, and those like ACS that are making big bucks providing services like parking meters–taking a major chunk of the money that the city would otherwise have available for public purposes.

Perhaps we could require drug testing as a condition of getting an education voucher. And let’s not forget all the elected officials–10,400 of them, thanks to Indiana’s archaic township system–who are suckling at the public you-know-what. In fact, we should test everyone paid with tax dollars–teachers, police officers, firefighters, clerks in the City-County Building…Surely, those of us whose tax dollars pay their salaries are entitled to know whether our money is going to substance abusers.

Proponents of drug testing for welfare recipients justify that proposal by pointing to the expenditure of tax dollars. By that logic, we should test everyone we are supporting or enriching with public funds.

What’s sauce for the goose ought to be sauce for the gander.

Little by Little….

A federal appeals court recently became the second such court to declare DOMA–the federal “Defense of Marriage Act”–unconstitutional. The challenge was brought by an 83-year-old resident of New York State, where same-sex marriage is legal. When her partner–pardon me, her wife–died, DOMA allowed the IRS to assess an estate tax nearly 400,000 higher than she would have owed had her spouse been a man.

The court ruled that DOMA violates equal protection, by treating couples (all of whom are legally married in New York) differently, based solely upon whether the marriage partners are of the same or opposite sex. But the ruling did something even more important: it analyzed the case under what is called “heightened scrutiny.” If this part of the ruling holds up, it will make cases alleging discrimination based upon sexual orientation much easier to win.

Doug Masson has posted an excellent summary of the case. As he reports

To withstand intermediate scrutiny, a classification must be “substantially related to an important government interest.” “Substantially related” means that the explanation must be “exceedingly persuasive.”. The justification must be genuine, not hypothetical and not invented after the fact in response to litigation.

The Court rejected BLAG’s argument that Congress had an important interest in passing DOMA to maintain uniformity on the issue of marriage-related benefits in protection of the treasury. The court observed that Congress has historically allowed states to go their own way on marriage. (For example, rules about age, divorce, consanguinity, and paternity.) Indeed, the sudden federal intrusion into marriage is, itself, suspicious. (All the states-rights advocates have been clamoring for repeal of DOMA, yes?)

Another justification was preserving the historical understanding of marriage. But, the court observed, ancient lineage doesn’t protect a law where it lacks a rational basis. Miscegenation and anti-sodomy laws had pretty long historical roots of their own.

Another justification was encouraging responsible procreation. The court recognized that this could be an important government interest but did not see that DOMA advanced that interest.

DOMA does not provide any incremental reason for opposite-sex couples to engage in “responsible procreation.”6 Incentives for opposite-sex couples to marry and procreate (or not) were the same after DOMA was enacted as they were before. Other courts have likewise been unable to find even a rational connection between DOMA and encouragement of responsible procreation and child-rearing.

The Court also dismissed as “far-fetched” the idea that the laws passed by Congress might actually make people gay or effect their sexual orientation. It was also not persuaded by the idea that merely getting to use the extra-special word “marriage” would, on its own, promote stable opposite-sex marriages.

Because the court concluded that same sex married couples constituted a “quasi-suspect” class and because DOMA was not “substantially related” to an important government interest, the Second Circuit concluded, it must be regarded as being in violation of the Equal Protection Clause of the 14th Amendment.

The ruling was satisfying. What was not satisfying–indeed, what was very disappointing–was the role of Indiana’s Attorney General, Greg Zoeller, who led the group of states arguing for DOMA and its constitutionality. I have generally been impressed with Zoeller; unlike the hot dogs and culture warriors and know-nothings we seem to elect, he has come across as thoughtful and modest, and willing to abide by precedent. (I realize that complimenting a lawyer on willingness to abide by the law is a bit odd, but these days, the bar is set really low.) His willingness to fight for a discriminatory law in a case that did not directly involve Indiana–a case where he was a volunteer–was disappointing.

The bottom line, however, is that despite the efforts of Zoeller and those who agree with him, equality for GLBT folks is coming.

Little by little, the barricades are coming down.

 

No Rites, No Rights

Those of us who argue for same-sex marriage typically refer to the 1008 or so rights that accompany state recognition of marriage. The rights most often discussed are concerned with hospital visitation, taxation and inheritance, and those inequities are particularly galling.

But there are lots of other rights that are denied to GLBT folks who cannot marry—and even to those who live in states that do allow same-sex marriage, thanks to the unwillingness of the federal government to recognize those marriages for purposes of federal law. Immigration law is an example.

Back in my days as Indiana’s ACLU director, I had a visit from a twenty-something young man (let’s call him Scott) and his lover, who was from El Salvador (let’s call him Juan). They had met on a student exchange program of some sort, and fallen in love. They wanted to make a life together, preferably in the United States. But the young man from El Salvador was ending the term of his most recent visa, and immigration lawyers had told him there was nothing they could do—that if he wanted to immigrate to the U.S., legally, he would have to go home, apply and wait. If memory serves, his likely wait was something like fourteen years.

Scott’s American parents were supportive. They offered to legally adopt Juan. That didn’t sit well with Juan’s parents, not to mention some pesky legal impediments to what was a pretty creative—or desperate—approach.  At that time—and probably still today—an equal protection lawsuit was untenable. The last I heard, the couple—consisting of two highly skilled workers who would have been valued members of the workforce had they been straight—was living in El Salvador.

Had Juan been “Janice,” the scenario would have been far different.

Thirty years ago, our daughter fell in love with a non-citizen. They married, and as the spouse of a U.S. citizen, he has lived in the U.S. legally ever since. No problem.

Unfortunately, Scott and Juan ran into two deeply-entrenched bigotries: one against same-sex couples, and one against Hispanics.

It is unnecessary to recount the current efforts in Arizona, Indiana and elsewhere to marginalize and harass Hispanics. The rhetoric is all about “illegals,” but the legislative measures are not so narrowly targeted. Meanwhile, my son-in-law has lived in this country for over 30 years without ever encountering anti-immigrant animus. Why? Here’s a clue: He is British, and very white. His accent is considering charming, even “classy.”

People are people. There are certainly undesirables who want to come to America (not to mention our homegrown crop), but they are undesirable for personal reasons: drug habits, criminal histories, contagious diseases, likely inability to find gainful employment. None of these reasons has anything to do with sexual orientation or country of origin.

In our interconnected world, where international travel is easily accessible and growing exponentially, people from different countries will fall in love. It makes no sense to treat those couples differently based upon their sexual identity or birthplace. These distinctions are not based on thoughtful policies, they are not enforced in order to make our country safer or to protect our economic well-being. They are based purely on prejudices that we would do well to discard.

Until we do, the Scotts and Juans of this world will continue to get the short end of the stick.