A CRIME (NOT ?) SHIT TO BE NAMED
This post will make explicit an observation I implicitly made in the last post.
Under our Constitution, when a law singles out a particular class of individuals that does not constitute a "suspect class" (the Supreme Court has only recognized the following as suspect classes: race, religion, national origin, ethnicity and color), the law, to pass muster, need only survive "rational basis review," that is, it need only be "rationally related" to a "legitimate governmental interest." The Court, in dicta, has defined the rational basis test so as to make any law pass it: under this test, if a reason could theoretically be articulated at ANY point at time between now and infinity for the law - i.e. if a reason could theoretically be articulated that shows that the law is rationally related to the interest - then the law is OK - even if the government cannot articulate the interest now.
The Court cannot - or more accurately, does not, seriously mean this The Court has struck down several laws under the rational basis test, devised in the '70's (see, e.g, Cleburne, Moreno, Romer, Lawrence v. Texas). If the Court took its dicta (which some of its members believe to be holding) seriously, these cases would have been sent back to the lower courts, or the writs for cert. would have been dismissed as improvidently granted, on the theory that the cases were not yet "ripe" for adjudication, since the government had yet to have the opportunity to let eternity pass to show that SOME reason theoretically could be articulated showing a rational relationship.
The Court should, in its next rational basis case, overrule this dicta, to the extent it has claimed reliance upon it as holding, because the Court has not ACTUALLY relied upon it, or else Cleburne et al would never have seen the light of day.
So, what actually did motivate the court to decide the above-decided cases the way it did? The cases were decided over a period of three decades, but the nine berobed weasels in each case essentially said, without HOLDING as much, that the laws in each case were passed solely out of irrational animus toward a non-protected group. "Irrational," in that the government's professed concern for the group/others who might come into contact with it was not empirically validated; "animus" in the sense that the court found, either in the legislative history directly, or by negative implication, that animus was the only valid reason for the passage of the law. Moreover, in each of the four cases, even assuming the interest was legitimate (denial of food stamps in Moreno; ensuring that construction does not occur on property that might flood in Cleburne; freeing up state resources so the resources could be used for non-homosexual causes in Romer; preservation of state morals in Lawrence); the Court found that the manner in which the laws related to the interest was so irrational as to defy description. For example, in Moreno, the Court struck down a federal law denying food stamps to hippies (yes, that was the law). The Court held that assuming, arguendo, that the interest in preservation of government resources was a legitimate one, the law employed to further this interest, out of the 100,000+ laws that could conceivably legitimately be used to further it, made about as much "rational" sense as denying food stamps to people born on Tuesdays. Only animus against hippies could have motivated the law, just as the Court concluded that only animus against the mentally retarded animated the law in Cleburne, and that only animus against gays animated the laws in Romer and Lawrence
What the Court did not say in any in these four cases explicitly, but should have, given how it presented the facts in each case, and what it made of them vis a vis the respective holdings, is if the only conceivable basis for the passage of a law is animus wherein the the law relates to the interest in such a manner as to defy description, the law must be struck down.
Justice Blackmun's dissent in Bowers v. Hardwick is instructive here (by the way, Michael Bowers, Georgia's Attorney General, openly admitted in pleadings in a subsequent case to committing the crime of fornication): "Like Justice Homes, I believe that "[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the gronds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past" Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897). I believe we must analyze Hardwick's claim in the light of the values that underlie the constitutional right to privacy. If that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is an "'abominable crime not fit to be named among Christians.'"
How sad indeed was the fact that the quite conservative Georgia Supreme Court (in 1998) struck down the statute under which Hardwick was prosecuted, by a vote of 6-1, before the Supreme Court decided Lawrence in 2003.
Florida's law barring gay individuals or gay couples from adopting is the direct result of the bigot-mongering of Anita Bryant and her ilk in the mid-to-late 1970's. Only "blind imitation" of that past has kept this law alive, not that the grounds for its passage were ever solid (Bryant claimed that if children were left in the hands of gay schoolteachers or gay adoptive parents, untrammeled molestation would result - the first claim has not been empirically borne out, and the second claim has not been given a chance to be tested in Florida, but has been disproven in 49 other states. The 11th Circuit shamefully upheld the law in the latest round of litigation by stating that "We must respect the Florida legislature's judgment that children have the right, by the state's ensuring that they be placed with non-practicing homosexuals, to be "part of the mainstream." Never mind that the legislature did not define what "mainstream" meant, and that this phrase is an expression of bigotry by any other name. See also Justice Jackson's great quote in West Virginia v. Barnette ("If there is one fixed star in our constitutional constellation, it is that no government officer, however petty or mighty, shall prescribe what shall be orthodox in matters of faith or social affairs or politics, or compel citizens to state their belief in such orthodoxy") (not an exact quote, but a good replica). The state has no business describing "mainstream" since to do so is to stigmatize and to provide the official imprimatur of bigotry.
Under our Constitution, when a law singles out a particular class of individuals that does not constitute a "suspect class" (the Supreme Court has only recognized the following as suspect classes: race, religion, national origin, ethnicity and color), the law, to pass muster, need only survive "rational basis review," that is, it need only be "rationally related" to a "legitimate governmental interest." The Court, in dicta, has defined the rational basis test so as to make any law pass it: under this test, if a reason could theoretically be articulated at ANY point at time between now and infinity for the law - i.e. if a reason could theoretically be articulated that shows that the law is rationally related to the interest - then the law is OK - even if the government cannot articulate the interest now.
The Court cannot - or more accurately, does not, seriously mean this The Court has struck down several laws under the rational basis test, devised in the '70's (see, e.g, Cleburne, Moreno, Romer, Lawrence v. Texas). If the Court took its dicta (which some of its members believe to be holding) seriously, these cases would have been sent back to the lower courts, or the writs for cert. would have been dismissed as improvidently granted, on the theory that the cases were not yet "ripe" for adjudication, since the government had yet to have the opportunity to let eternity pass to show that SOME reason theoretically could be articulated showing a rational relationship.
The Court should, in its next rational basis case, overrule this dicta, to the extent it has claimed reliance upon it as holding, because the Court has not ACTUALLY relied upon it, or else Cleburne et al would never have seen the light of day.
So, what actually did motivate the court to decide the above-decided cases the way it did? The cases were decided over a period of three decades, but the nine berobed weasels in each case essentially said, without HOLDING as much, that the laws in each case were passed solely out of irrational animus toward a non-protected group. "Irrational," in that the government's professed concern for the group/others who might come into contact with it was not empirically validated; "animus" in the sense that the court found, either in the legislative history directly, or by negative implication, that animus was the only valid reason for the passage of the law. Moreover, in each of the four cases, even assuming the interest was legitimate (denial of food stamps in Moreno; ensuring that construction does not occur on property that might flood in Cleburne; freeing up state resources so the resources could be used for non-homosexual causes in Romer; preservation of state morals in Lawrence); the Court found that the manner in which the laws related to the interest was so irrational as to defy description. For example, in Moreno, the Court struck down a federal law denying food stamps to hippies (yes, that was the law). The Court held that assuming, arguendo, that the interest in preservation of government resources was a legitimate one, the law employed to further this interest, out of the 100,000+ laws that could conceivably legitimately be used to further it, made about as much "rational" sense as denying food stamps to people born on Tuesdays. Only animus against hippies could have motivated the law, just as the Court concluded that only animus against the mentally retarded animated the law in Cleburne, and that only animus against gays animated the laws in Romer and Lawrence
What the Court did not say in any in these four cases explicitly, but should have, given how it presented the facts in each case, and what it made of them vis a vis the respective holdings, is if the only conceivable basis for the passage of a law is animus wherein the the law relates to the interest in such a manner as to defy description, the law must be struck down.
Justice Blackmun's dissent in Bowers v. Hardwick is instructive here (by the way, Michael Bowers, Georgia's Attorney General, openly admitted in pleadings in a subsequent case to committing the crime of fornication): "Like Justice Homes, I believe that "[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the gronds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past" Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897). I believe we must analyze Hardwick's claim in the light of the values that underlie the constitutional right to privacy. If that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is an "'abominable crime not fit to be named among Christians.'"
How sad indeed was the fact that the quite conservative Georgia Supreme Court (in 1998) struck down the statute under which Hardwick was prosecuted, by a vote of 6-1, before the Supreme Court decided Lawrence in 2003.
Florida's law barring gay individuals or gay couples from adopting is the direct result of the bigot-mongering of Anita Bryant and her ilk in the mid-to-late 1970's. Only "blind imitation" of that past has kept this law alive, not that the grounds for its passage were ever solid (Bryant claimed that if children were left in the hands of gay schoolteachers or gay adoptive parents, untrammeled molestation would result - the first claim has not been empirically borne out, and the second claim has not been given a chance to be tested in Florida, but has been disproven in 49 other states. The 11th Circuit shamefully upheld the law in the latest round of litigation by stating that "We must respect the Florida legislature's judgment that children have the right, by the state's ensuring that they be placed with non-practicing homosexuals, to be "part of the mainstream." Never mind that the legislature did not define what "mainstream" meant, and that this phrase is an expression of bigotry by any other name. See also Justice Jackson's great quote in West Virginia v. Barnette ("If there is one fixed star in our constitutional constellation, it is that no government officer, however petty or mighty, shall prescribe what shall be orthodox in matters of faith or social affairs or politics, or compel citizens to state their belief in such orthodoxy") (not an exact quote, but a good replica). The state has no business describing "mainstream" since to do so is to stigmatize and to provide the official imprimatur of bigotry.
posted by EnterCenter at 5:09 PM
0 Comments:
Post a Comment
<< Home