From: holcomb@sylvester.cgd.ucar.edu (Katherine Holcomb)
Subject: Constitution
Organization: Climate and Global Dynamics Division/NCAR, Boulder, CO
Distribution: co
Date: Tue, 10 Nov 1992 17:15:03 GMT

In light of some recent discussion I thought it might be worthwhile to post
the following excerpts from the US Constitution.

Article VI, Paragraph 2:

This Constitution, and the laws of the United States which shall be made
in pursuance thereof; and all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of the land;
and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding.

Amendment XIV, Section I:

All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state
wherein they reside.  No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.

-----

The central dilemma of any democracy is the protection of the minority from
the "tyranny of the majority," or, more generally, protection of the powerless
from those with power.  An example might be seen in the gradual evolution
over the past 124 years (the 14th Amendment was ratified in 1868) of the
definition of the word "person."  The 14 and 15th Amendments were intended
to protect blacks, yet for quite a while after their ratification, "person" 
still meant, to the courts, "white male," or, at best, sometimes "male." It 
required a specific amendment to the US Constitution to guarantee women the 
vote, even though a strict reading of the 14th and 15th Amendments should 
automatically grant women the vote.  (The 15th Amendment guarantees the vote to 
"citizens.") Slowly, the notion of "person" has been extended to include more 
and more categories, but it is still highly politicized.  

There have been many cases in which the majority will has been overturned in 
courts because the majority wishes to oppress the minority.  One need only
look to the history of the Civil Rights movement to see examples.  Democracy
is not absolute in this country, and never has been.  If it were, it is
questionable whether blacks would even now have the right to vote.

The potential applicability of this to Amendment 2 should be clear.  Although
it is unclear how the courts will actually react, it should be unconstitutional
for any state to specifically *exclude* a particular group from the "equal
protection of the laws."  That is, by eliminating homosexuality, but not
heterosexuality, as a basis for lawsuits, the privileges of a certain group
have been abridged.  Note that freedom to pursue a lawsuit is *not* by any
means the same as institution of a quota requirement.  There are two types
of lawsuit that are typically encountered in job discrimination.  One type
is of the class-action variety, in which a certain employer is alleged to
have systematically discriminated against a certain class of people.  This 
is usually proved by means of statistical arguments, and if successful, it
sometimes has the consequence (more usually, the *perceived* consequence) of 
the institution of "quotas."  The second type of discrimination suit is that 
pursued by an *individual* who feels he has been unfairly treated.  "Quotas"
are indeed a fairly tenuous interpretation of the "equal protection" clause,
but it should be unambiguous that a right should not be *denied* to an
individual.  

By the way, there do exist legal precedents for capricious firings based on
factors unrelated to the job or the funding situation, although they are not
well-established.  So a person who is fired because he drinks Pepsi and his
boss does not like Pepsi drinkers would have some basis for a lawsuit.  He
is not likely to win, but there are precedents.  

The only non-political argument that the sponsors of 2 can make in defense
against the 14th Amendment is that their amendment really only prohibits
any unit of government from making laws which protect homosexuals, it does
not really legalize discrimination against homosexuals.  However, this seems
to me a tortuous argument.  It is still legal to make laws to protect, say,
religious fundamentalists.  Denial of any chance of protection seems to me
to be the same as legalization of discrimination.

It is probably no accident that homosexuals were singled out.  Of course, the
religious right (which need not be the same thing as a fundamentalist, btw)
has a particular hatred of homosexuals, but it is also true that most 
other categories have already been granted "personhood" under the courts and
laws, whereas one's private sexual preference or behavior is less well 
protected.  Thus we could not pass a law denying protection to religious
fundamentalists, because their protection is already well-established in
the law.

My opinions only.  And I am not a lawyer.

--
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Katherine Holcomb                      |  You don't need a weatherman 
Climate and Global Dynamics Division   |  to know which way the wind blows
NCAR, Boulder, CO                      |                -Bob Dylan
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