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.
– 14th Amendement to the US Constitition, Section 1
Does a progressive income tax violate the equal protection clause by taxing the rich more harshely than the rest of society?
How about a cigarette tax, which discriminates against smokers?
How about tax treatment of married couples, which rewards single-income couples at the expense of bachelors, two-income couples, and couples whose relationships are not recognized as marriage by the federal government?
I’m pretty sure the answer to all of these questions is “no” from an abstract theoretical perspective, and I’m certain the Supreme Court has never ruled that any of these things are equal protection violations, but I’m curious to hear people’s arguments one way or the other. I suspect the discussion would be illuminating to the meaning of the equal protection clause.
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No.
But then I also don’t think limiting marriage to male-female couples is a violation of equal protection either.
If these cases are violations of EP, then so is most of our statutory scheme.
The answer is clearly and obviously “yes” just as affirmative action programs clearly and obviously discriminate against whites, Asians, and occasionally Latinos and should be illegal under any minimally coherent legal theory.
Unfortunately, law is not a reasoned, intellectual process devoid of political influence. Justice is not only no longer blind, she has copies of your genetic history, income, and credit reports, and you will be judged on the basis of those things.
The progressive movement is predicated on the notion that feelings are more important than law or reason or science or economics, as Barack indicated with his “empathy” comment on the SCOTUS pick.
the amendment says that no one shall be denied protection of the law, for reasons of race gender etc.
since taxes are a legal requiement and not something you need to be “protected” from by the law, the clause doesnt apply.
since taxes are a legal requiement and not something you need to be “protected” from by the law, the clause doesnt apply.
See ref. Miranda and Gideon v. Wainwright for an example of a case where the court determined that people do indeed need to be “protected” from the legal requirements of arrest and trial.
There are much better examples, I’m sure.
Taxes are not equally applied, even if the taxation is independent of the identity of the individual taxpayer.
the amendment says that no one shall be denied protection of the law, for reasons of race gender etc.
Where does it say the part about race, gender, etc? I don’t see any language in the amendment limiting it by the reason for denial of equal protection.
since taxes are a legal requiement and not something you need to be “protected” from by the law,
Not so, poll taxes were ruled illegal on the basis they discriminated against blacks.
Since there hasn’t been much illumination on the meaning yet, let me give you my brief take.
The laws must be neutral as regard to certain classifications, such as gender, race and religion, because these are referenced in the Constitution and/or have a strong history of USSC jurisprudence. Violations of this neutrality have to have good rationales unrelated to merely discriminating based on protected charateristics.
Other “discriminations” are valid unless one can demonstrate they serve merely as placeholders for the protected classifications. Then the neutral laws must be enforced in a reasonably consistent manner.
So, nothing wrong with progressive tax structures. Nothing wrong with only recognizing male-female marriages, and not same-sex couples. Nothing wrong (IMHO) with seperate but equal, but it must be equal, not that I think the govt is wise to engage it that in most circumstances.
Despite the unpleasant connotation that the word “discrimination” takes on these days, and not without good reason, the statutory scheme is essentially an exercise in discrimination between what we allow and what we don’t, what we tax and what we don’t. That is its essence.
Roger, your summary matches up very closely with my understanding of current case law around the equal protection clause. Governments can and must discriminate based on factors that matter for a legitimate “public purpose” (for example, speed limits discriminate against people who drive fast in order to improve traffic safety). And how strictly the courts judge whether the discrimination is legitimate depends on whether it hits a “suspect class” particularly hard.
RogerR, you said “Nothing wrong with only recognizing male-female marriages” and “it must be equal.” Does this mean that, in your opinion, same sex couples should be given the same tax benefits, spousal health care benefits, power of medical decisions and ability to adopt children? If not, which of these, or other benefits should be limited to opposite sex couples?
IMHO “rights” accrue to individuals, not couples. There isn’t any law against gay individuals marrying somebody of the opposite gender. So, they have equal protection under the law. The govt isn’t obliged to make everything equal no matter what choices people make. Renters are not entitled to some tax break equivalent to the mortgage interest deduction.
One can certainly question things the govt favors, and whether such benefits and tax breaks are good, or should be structured differently. That is for the political branches to decide.
Also, I think it is useful to keep in mind that basic rights are different than govt benefits and policies that are discretionary. So, the govt has an obligation to not generally discriminate on the basis gender, race, religion, etc when creating the criteria to be eligible for such benefits. But that doesn’t mean that one can’t always post facto identify a “group” that, in the generic sense, is being “discriminated” against by the provisions of a specific tax break or law.
In terms of EP, your last question is irrelevant. Indeed, tax breaks aren’t limited to opposite sex couples. The tax code is filled with tax breaks based on other issues, and for a long time, a lot of married couples paid a higher rate for being married. None of that violates EP.
There is another concept that appears in some state constitutions, the “common benefits” clause, that is usually interepreted to be like EP, but is rarely interpreted (as in the Vermont Civil Union case) to mean “groups” can’t be treated differently. That engenders an altogether different discussion.
The “equal protection” provision applies to members of certain protected classes. Income brackets are not among these classes so, no, a progressive income tax is not a violation of equal protection.
RogerR, I don’t think that any of the benefits I mentioned qualify as a “right”. Each are benefits that we, as a society have decided make sense for couples.
We have decided that the person you live with, who shares your bed, home and life for years, knows you better than anyone else. Therefore, it is to that person that we give life and death decision-making power while you are in the hospital. Is that a benefit that should be limited to opposite sex couples, and if so, why?
We have decided that a couple may adopt children. Is there a reason that only opposite sex couples may do so? Only some states have laws against this, but I’ve never heard a good argument for it.
California provides most benefits to same-sex couples, such as health care, but many states do not. Aside from silly scenarios like two men pretending to be a gay couple to save their jobs (as in a recent comedy movie), is there a reason to limit this benefit to a couple who has opposite sexual organs?
In general, my question is not about rights, as the only right involved here is the right to love whom you wish and the government isn’t impinging that. My question is about what we, as a society have given to opposite sex couples yet denied, for no good reason that I can determine, to same sex couples.
Aside from silly scenarios like two men pretending to be a gay couple to save their jobs (as in a recent comedy movie)
Is there a reason to deny a couple these benefits merely because they’re not sleeping with each other?
In the situation in the aforementioned comedy movie, Larry and Chuck were extremely close friends, trusted each other completely, knew each other better than any other adults, etc. Larry worked a dangerous job and had two children from a previous marriage, and he wanted to make sure that if something happened to him, Chuck would get custody of Larry’s children and would receive Larry’s survivorship benefits with which to take care of the children. In the contrived scenario of the movie, the only way for them to ensure that was to pretend to be gay so they could get married.
I have to disagree with your characterization. Unmarried mixed gender couples do not acquire that characteristic by default. And unmarried same-sex couples are not prohobited from preparing medical power of attorney affidavits. So it really isn’t limited to mixed gender couples.
Actually, there are a lot of issues with adoption, where nominally the child’s interests are supposed to prevail. Can we prefer couples over single persons? Can religious adoption agencies adhere to their religious tenets?
Eric makes a good point vis a vis the logic of “include my group in the benefits, but not others”. Beyond Conjugality was the document that illustrated the logical flaw, at least as it relates to fairness type arguments. I’m not sure if your point is about CA as a govt, or CA as an employer, but understand that most states (maybe all) don’t prohibit employers from offering health care to SS couples, nor do they require offering such benefits to M-F couples.
If you understand the origins of marriage, it makes perfect sense. It came about because of the way humans reproduce, and the need to provide for helpless young ones for a long period of time. Marriage wasn’t an institution created to pass benefits to adults, but an obligation of adults to participate in before they started making babies. One can certainly argue that all this has changed in the last 50 years. As I will argue that we are seeing changes reflected in the rules. But to argue that we can’t have the current rules is to really argue we can’t have rules.
I agree with you re: medical power of attorney affidavits. It’s a bit of an extra step, but still totally available to same sex couples.
Adoption agencies that are specifically affiliated with a religion are an interesting issue. If adoption is controlled by the state, as I believe is the case, then any agency, regardless of its underlying motivations and morals must follow state law. Now, I honestly wouldn’t argue if a state legislature put forward a bill allowing religious affiliated adoption agencies to limit adoption to opposite sex married couples. Any state-run adoption agencies should have no such restriction and should handle adoptions on a case-by-case basis without prejudice to the gender of the parent(s).
IIRC, CA as a govt. requires that employers that extend benefits to family members must extend the same benefits to same sex partners. This also applies to things like theme parks with “Family Pass” and such things.
I will quote a friend of mine here who sites some good examples of marriage having changed from being about raising children:
“So, when boy marries his high school girlfriend, and after ten years of wedded life, she’s not conceived a child ten years later, not pregnant once in 15 years of sharing a home, clearly, why should the state recognize them as man and wife?
When a couple who have known each other since they were teens begin to date when they are both in their 60s, widow and widower, her childbearing years far behind her, there is no need for the state to recognize or regulate their relationship, as his three sons, his daughter, and her daughter are all grown, and four of them have children of their own.
But two women…living together for almost 30 years, raising an adopted child from the age of 6 onwards. Well, they, they would benefit from being able to pool their finances, put the child on the health insurance of the one whose employer offers health insurance. Buy a family pass at Disneyworld.
So, um, explain to me again, about this “marriage is designed to raise children.” I think there is some part of the legal system [of] California (and Louisiana, where these events all happened to me) that I’m not understanding.”
I actually agree that it was created as an helpful mechanism for the raising of children. As this is hardly the sole purpose any more, all I’m saying is that the rules we have should allow any two people who choose to share a life to join in the institution. We certainly don’t require that adults be married before having babies.
I’m not sure what you mean by “But to argue that we can’t have the current rules is to really argue we can’t have rules.” I’m not arguing against the other common limits on marriage (age, only two people at a time), though I could make a case against he latter. I think that one reason that people have for being against same sex marriage is that it removes one restriction and they’re worried about the others. They’re worried about what will happen to society if, once same sex marriages are common and accepted, the other rules come under fire. This isn’t an entirely unwise way to view the argument, but, I still doubt that the same sex restriction will hold out forever.
I’ll also bring up a question I’ve had before in another thread. What, in your opinion, should happen to a marriage in which one person legally changes gender after marriage?
makellan,
These are the type of things that some call special rights for gays. I can see their point. There isn’t a law requiring benefits for family members or Family passes, but now they issue a requirement in law concerning SS partners and what 3rd parties must do for them.
The question isn’t whether laws and attitudes have changed in recent years, the question for me is more whether that change in focus over what the purpose of marriage is, is good? And if not good, can we refocus it to the betterment of children. That’s almost impossible when the focus is now about the “rights” of adults to the benefits.
I’ve discussed many of the issues, and am willing to again if you wish to, although this probably isn’t the appropriate forum. I will point out that the scenario involving the lesbian couple leaves an incorrect impression. People need not be married or in a civil union to share income and property, and one’s legally adopted children are eligible for health benefits at a company that offers family plans.
That’s what I mean. You’re saying you have a problem with rule A, but can accept B, C, D, … But of course, others will say they can live with A, but would like to get rid of B. others C. Once we’ve decided marriage isn’t about the critical issue of the raising of children, not sure there is any principled argument against getting rid of any particular rule. We can certainly change the rules when the majority chooses. And that is and will happen with SS marriage. But there isn’t any principled argument I’ve seen that says only A should be abolished.
One can always imgaine situations that torture current laws, by setting up conflicting principles. Hard cases make bad law. This particular situation isn’t particularily difficult for me. In a state that recognizes only mixed gender marriages, the marriage would be null and void. This is analogous to situations where men with more than one wife come into the US.
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