lesl at UDEL.EDU
Sun Aug 20 15:51:20 PDT 2000
I would add only that while the equal Prot. concept can be read as a ban
[excepting a genuinely compelling govt interest] on invidious racial
discrimination, it also frowns upon [calling for the intermediate
scrutiny test] group-based discriminations along lines where there is a
quasi-subordinated-caste danger for the group in question [as with the
treatment of sex discrim. and the arg of the Bakke four who favored the
affirmative action in question]. So I suppose that in Batson and
Palmore there'd have to be an important govt interest at stake. Re:
Batson, this sounds like the "for cause" juror strikes would satisfy the
govt interests in question (thus leaving no foundation for the
peremptory strikes on race-based grounds). Re Palmore, this strikes me
as more complicated. It could be argued that the decision is really
grounded in societal hostility of whites to blacks, without which the
kid would have been left with her mother. It could also be argued that
the mother's rights to familial privacy were being trounced on when her
[cross-racial] choice of spouse was treated by the lower court judge as
reason to deprive her of custody of her kid. Here's a question: Had the
mother committed herself to a relationship with another woman instead of
a black man, do you think the current Court would bother taking the case
to undo a lower court decision transferring custody to the dad on
similar hostile/community/best intest of child grounds?
"Volokh, Eugene" wrote:
> I appreciate Leslie's offering a definition of invidiousness;
> such a definition now makes it much easier to clearly respond to her
> If the Equal Protection Clause is interpreted as banning only
> invidious racial discrimination, under her definition, then the
> government would be allowed to discriminate in any way that isn't born
> out of "hostility to [a] group" or a "desire to hurt [that group]."
> Under this approach, Batson and its following cases, and Palmore v.
> Sidoti would have certainly come out the opposite way. Korematsu
> might well have been correctly decided. Government discrimination
> based on rational, nonhostile generalizations about various groups'
> abilities and traits would be permissible, because it would flow from
> bureaucratic rationality and a desire to get certain jobs done as
> efficiently as possible, not a desire to hurt anyone. Likewise for
> government discrimination based on rational, nonhostile desire to
> accommodate private customer preferences.
> Also, since it's hard to imagine why the Equal Protection
> Clause would restrict sex discrimination more aggressively than it
> restricts race discrimination, under Leslie's definition the Equal
> Protection Clause would tolerate probably virtually all sex
> discrimination, since it is the very rare sex classification that is
> enacted "out of a desire to hurt" either men or women.
> Now perhaps these are the right results. I say only that if
> one is urging that the E/P Clause be interpreted as banning only
> invidious discrimination (under Leslie's definition), these are the
> results that one would likely get. Make of that what you will.
> Leslie Goldstein originally wrote:
> What is the evidence that the equal proteciton clause is best
> as a ban specifically on RACIAL discrimination, as distinguished form
> being a ban on INVIDIOUS racial discrimination or on some other
> Leslie Goldstein writes:
> "Invidiousness" means hostility to the group in question. If a
> law discriminates against a group out of a desire to hurt them,
> that law violates both due process (the process of lawmaking that
> is due, i.e. wielding state power to serve the public intereest,
> not to satisfy personal animus) and equal protection.
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof