Articles Posted in discrimination

Proposition 8 at the Supreme Court-Marriage Equality -Part I


By R Tamara de Silva

March 27, 2013


       The Supreme Court has not delved into marriage lightly, tending to defer to state governments.  While marriage is one of the most democratic and universal states shared across almost all cultures,
socio-economic strata, ethnicities and religions, it remains withheld to one group in America.  In the United States, marriage is a legal contract that confers specific treatment in tax,
probate and property law. This week, the United States Supreme Court begins to consider the constitutionality of marriage between people of the same gender.  The first topic on marriage equality to be covered this week is Proposition 8 followed by the Defense of Marriage Act (“DOMA”) on Wednesday.  The Court may potentially decide whether one specific group of people can be treated differently when it comes to one right.  Perhaps it may even consider whether marriage is an unenumerated right. 
Alternatively, the Court may defer the issue and rule on narrow grounds of the standing -that the Petitioners cannot bring their defense of Proposition 8 to the Court.     Yesterday, the highest Court heard oral arguments on California’s ban on same sex marriages called Proposition 8 in the case of Hollingsworth v.

       Gay marriage is more polarizing than any other of the other social issues that divide the political right and left except abortion.  In Hollingsworth v. Perry, the Court considers whether California’s Proposition 8, which prohibits marriage between people of the same sex or gender, violates the United States Constitution and whether the advocates of Proposition 8 have legal standing to speak on the matter.  

       Prior to November 8, 2008 when Proposition became law by amending the Constitution of the State of California to eliminate the right to same-sex couples to marry,
same sex marriage was, albeit briefly, legal in California.  The District Court struck down Proposition 8 finding that it violated the Fourteenth Amendment’s Equal Protection Clause because there was no rational basis for the state to deny the status of marriage to same-sex couples and also because Proposition 8 violated the Due Process Clause in that California had no compelling interest in denying the right of marriage to same-sex couples.

       States can legally enact laws, which treat different people differently, under the Fourteenth Amendment so long as there is a legitimate governmental interest or a rational interest for their doing so.   This is not a particularly high standard to meet.  However, when the government enacts measures to treat people differently based upon differences between them like,
their race, the courts have applied a higher standard of scrutiny upon the laws, one which is called “heightened scrutiny,” this is more than having to merely show a rational interest. 
It is unclear under which standard the Court will scrutinize Proposition 8, which is clearly discriminatory to same-sex couples, based upon their being same-sex couples.

       Proposition 8 allows same-sex couples to do pretty much everything the status of being married in California confers such as; raising children together, constructive parentage, being able to adopt each other’s children, becoming foster parents,
filing joint state taxes, enjoying group health plans, having rights to hospital visitation, making medical decisions, being able to sue for wrongful death, and being conservator on their same-sex partner’s estate.  Same sex couples in California can do everything married couples can do under Proposition 8, except be given the title of “married.”

       Proponents of Proposition 8 argued that its purposes were to advance California’s interest in responsible procreation and childrearing.  They argued that this interest justified giving same-sex couples all the activities and interests of married couples, save for the title and stature of marriage. 

       The Court of Appeals did not rule over whether the goals and rationale for Proposition 8 were legitimate state interests that though discriminatory,
survived an analysis of the Fourteenth Amendment because it pointed out that Proposition 8 did not remove all the childrearing rights of same-sex couples that existed prior to its enactment. 
The Court of Appeals upheld the District Court’s ruling but in an extremely narrow manner-without addressing the rationale for discrimination under Proposition 8.  They did use some interesting language in the background referring back to previous laws against marriage which were struck down,


If tradition alone is insufficient to justify maintaining a prohibition with a discriminatory effect,
then it is necessarily insufficient to justify changing the law to revert to a previous state. A preference for the way things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves, as well as their families.[2]



       The Court of Appeals was referring to the last time the Supreme Court looked at a comparably important and discriminatory law against marriage- almost 46 years ago in Loving v. Virginia.  In the Loving v.
, 388 U.S.1 (1967)., the Supreme Court struck down Virginia’s anti-miscegenation law which prohibited inter-racial marriage for the sake of protecting racial purity and preserving segregation.  The trial judge in the Loving case had a simple rationale that invoked God,


Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.
And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.



       Whether discrimination based on sexual orientation is on a par with discrimination based on race is deeply contested among the American people.  In an extraordinary move, the United States Justice Department has taken a stand in this question and this case, by filing an amicus
brief with the Court on February 28, 2013.[3]  

            I have heard both proponents and opponents of same-sex marriage cite the decidedly higher authority, as in Loving.  For example, Cardinal Dolan and many others, who oppose legalizing same-sex marriage cite the unquestionable authority,


“Our country’s founding principles speak of rights given by God, not invented by government, and certain noble values – life, home, family, marriage, children, faith – that are protected, not re-defined, by a state presuming omnipotence.


Please, not here!  We cherish true freedom, not as the license to do whatever we want, but the liberty to do what we ought; we acknowledge that not every desire, urge, want, or chic cause is automatically a “right.”  And, what about other rights, like that of a child to be raised in a family with a mom and a dad?


Our beliefs should not be viewed as discrimination against homosexual people.  The Church affirms the basic human rights of gay men and women, and the state has rightly changed many laws to offer these men and women hospital visitation rights, bereavement leave, death benefits, insurance benefits, and the like.  This is not about denying rights. It is about upholding a truth about the human condition.  Marriage is not simply a mechanism for delivering benefits: 
It is the union of a man and a woman in a loving, permanent, life-giving union to pro-create children. 
Please don’t vote to change that. 
If you do, you are claiming the power to change what is not into what is, simply because you say so. 
This is false, it is wrong, and it defies logic and common sense.


Yes, I admit, I come at this as a believer, who, along with other citizens of a diversity of creeds believe that God, not Albany, has settled the definition of marriage a long time ago.”[4]



       There are legal weaknesses with Cardinal Dolan’s position, or any religious one for that matter- the principal one being that the Church’s position on marriage lacks relevance on the laws of the United States or its Constitution.  The Courts and the Legislature are sovereign from the theological realm because America is not like Iran, or other countries, a theocracy. 

       When political groups speak of religion and the Christian roots of America as evidenced by reference to God in the Declaration of Independence for example,
they tend almost never to also refer to the suspicion of any established religion by the state that was so deeply held by the Founding Fathers.  For example, the historical and cultural anti-Catholicism of many of the Founding Fathers, whether carried over from the Church of England or not, was profound and pervasive.  Yet what was agreed ab initio about America was that it must never be allowed to be a theocracy where anyone’s religious freedom would be curtailed by the joining of the state and a church.

       Speaking of looking back, an interesting exchange took place between the Court’s originalist jurist, Justice Antonin Scalia and the former Republican Solicitor General Ted Olsen,

Scalia: “When did it become unconstitutional to exclude homosexual couples from marriage?”   “1791? 1868, when the 14th Amendment was adopted?”

Olsen: “When did it become unconstitutional to prohibit interracial marriage?” Olson asked. “When did it become unconstitutional to assign children to separate schools?”  [Referring to Loving v. Virginia and Brown v. Board of Education].

Scalia: “At the time that the equal protection clause was adopted,” he said, before adding, “but don’t give me a question to my question.”

Olsen: “You’ve never required that before.”


Advantage Ted Olsen.

       From an historical perspective, marriage has been a secular institution; longer than it has been a religious one-with state recognition of marriage going back to Roman times and in other parts of the world preceding the Roman Empire.  The early church in Roman times did not have a marriage rite.  In fact in much of the ancient world, marriage was to secure social and political alliances and for economic purposes as much as for procreation.  In England, until 1753 and the Marriage Act of Lord Hardwicke became law, the Church of England permitted what we would consider very irregular marriages (where one of the parties was a child, one of the parties was already married, or the parents did not know) so long as they were performed by an ordained clergyman of the Church of England.  Your idea of “traditional marriage” may depend quite a bit on the length of your historical memory.

       The Supreme Court hears oral arguments on DOMA latter this morning.  Stay tuned for what may be the most interesting and important ruling of the high court in a very long time.@

R. Tamara de Silva

[2] Perry v.
, 671 F.3d 1052, 1101 (9th Cir. 2012)


By R. Tamara de Silva
August 22, 2011

“In approaching this problem, we cannot turn the clock back…”
Supreme Court Justice Earl Warren, 1954
Brown v. Board of Education

Over fifty-seven years ago, the Supreme Court voted unanimously to end segregation in schools in what many consider to be the most important legal case of this century. Brown v. Board of Education and the companion cases that followed, held that “separate was not equal,” and state laws that required separation between the races in schools, offended both Equal Protection and Due Process. Brown found that state laws that drew invidious distinctions based upon race, prejudiced black students. After Brown, any state law that provided for separation based upon race became illegal-forever changing the complexion of the nation’s schools, workplaces and neighborhoods.
It is inarguable that Brown has achieved an anti-discriminatory purpose and changed the nation-the degree to which it has succeeded merely as a desegregation measure or a political one, is widely debated but to a degree academic. Some of the smallest numerical minorities of non-white Americans, like Indian Americans are the most over-represented in colleges and universities. Yet, it is also true that below the college level, schools are almost as segregated now as they were fifty even years ago, but there are a complex set of causes for this-admittedly among them is some degree of desire to voluntarily segregate in housing locations.
Today race is not the consideration in need of anti-discriminatory policies in institutions of higher learning that it was when Brown was decided. One of the interesting consequences of Brown v. Board is that its scope has expanded to set the stage for new civil rights statutes like the Americans with Disabilities Act (“ADA”), which seek to protect in academia and in the workplace, people with disabilities. The ADA and its companion acts like the Individuals with Disabilities Education Act, have to some extent become the next generation of the civil rights statutes. The language of the ADA mimics the language of the Civil Rights Act of 1964. However, it is not clear how well the principles behind anti-discrimination in the context of race apply to the disabled, but particularly unclear when applied to the learning disabled.
Race is a stereotype that leads to a preference that is not per se rational-especially because of its application to all persons belonging to the race. As Justice Oliver Wendell Holmes said, “deep seated preferences cannot be argued about,” and “The mind of a bigot is like the pupil of the eye. The more light you shine on it, the more it will contract.”
It is never rational according to the principles behind Brown for an employer or an admissions officer to discriminate on the basis of race. It is only rational to discriminate based upon merit, because when race is factored out, a level playing field exists that allows for a more precise judgment on merit. Employers and admissions officers, who do not take race into consideration, will be better able to judge the strongest and most capable candidates.
However, the anti-discriminatory principles behind Brown, may not translate into rational preferences for an employer or an admissions officer in many instances of making choices between disabled and non-disabled persons. If an employer discriminates solely on race, this is not a rational decision but one made on stereotype-not likely to be reasonable on its own.
Since almost any principle can be carried to its logical end, some illustrations may be helpful. The preferences of an employer or an admission’s officer on the other hand towards a non-disabled person are arguably rational against a disabled person. For instance, an employer may not rationally want to hire a blind person to be a sewing machine operator. An admissions officer will rationally want the applicant with the strongest intellect (other factors being equal) and not someone who has enormous difficulty reading or sitting through a lecture.
There is a crucial difference between civil rights statutes and those that prevent discrimination against the disabled. The civil rights statutes prohibit irrational discrimination, that is discrimination based solely on race, gender or national origin. Section 504 of the Rehabilitation Act, Individuals with Disabilities Education Act (“IDEA”), ADA and related statutes do not differentiate between rational discrimination and irrational discrimination. Nietzsche held great contempt for disabled persons as being dangerous to healthy and strong ones-an irrational opinion. Yet what about a manufacturer, who must take into account costs in hiring, and is faced with a choice between hiring a blind sewing machine operator and an additional employee to work side by side to assist, and one non-disabled person? The ADA prohibits rational, economic decision.
The ADA came into being by defining a disability as an impairment that substantially limits a major life activity-this impairment is measured against everyone else in society without the impairment. Major life activity has been held to include, caring for oneself, walking, seeing, breathing, working and learning. It has evolved to enlarge the definition of disability to include people with learning disabilities (“LD”) which measure some cognitive impairment measured against an individual’s own best self-what they would be were they not to have the LD.
This article is concerned not with physical disabilities, or mental disabilities such as Downs Syndrome or mental retardation but specifically learning disabilities and the extension of anti-discriminatory principles that came into existence to prevent discrimination based on race to people with LDs. This article does not dispute the existence of LDs like dyslexia and mental retardation including forms of severe autism, which are accepted even outside of the LD industry, by the outside scientific community as real.
The definition of a LD is genuinely inclusive:

“The child does not achieve adequately for the child’s age or to meet State-approved grade-level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child’s age or State-approved grade-level standards:

• Oral expression.
• Listening comprehension.
• Written expression.
• Basic reading skills.
• Reading fluency skills.
• Reading comprehension.
• Mathematics calculation.
• Mathematics problem solving.

The child does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in 34 CFR 300.309(a)(1) when using a process based on the child’s response to scientific, research-based intervention; or the child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments, consistent with 34 CFR 300.304 and 300.305; and the group determines that its findings under 34 CFR 300.309(a)(1) and (2) are not primarily the result of:

• A visual, hearing, or motor disability;
• Mental retardation;
• Emotional disturbance;
• Cultural factors;
• Environmental or economic disadvantage; or • Limited English proficiency.”

The definition of LD, some would argue, eradicates what was once thought to account for the difficulty of students to learn as well as others-natural intelligence, aptitude or that someone can be better at math than reading or vice versa. Tests like IQ tests are sometimes administered and if a child scores higher in an IQ test and relatively poorer in a math test or reading test-this is considered evidence supporting the diagnosis of LD. LD proponents imply that were it not for the occurrence of LD, children and adults would be as smart as they are supposed to be (their idealized selves) and perhaps smarter than other children and adults without LDs.
Some within the LD industry supported by nothing other than rank speculation, insist that historical figures like Einstein, Charles Darwin, Beethoven, Van Gogh and Churchill had some form of LD. But by the amorphous catch-all definition of LD-who living or dead, would not?
By law, LDs can be diagnosed by a child’s parents and one teacher-there is no medical or scientific testing requirement to prove its existence. LDs also encompass ADD and ADHD. Predictably, this has led to skepticism and what critics point out is a specific lack of scientific rigor in this field.
There are other problems with the application of the ADA and related statutes arising from their definition, or lack thereof, of what constitutes a disability. Learning disabilities have exploded in occurrence among school age children. Asian students are least diagnosed with LD. All other ethnic groups appear to be over-represented. The relatively high and recent statistical occurrence of learning disabilities (suggesting an over-diagnosis), the fact that they disproportionately occur in the most affluent economic groups (suggesting a diagnosis of apologetic and hopeful parents) and their lack of scientific proof of its existence (in terms of objective double-blind tests, biological or genetic markers)-has further fueled skepticism. Some skeptics suggest that standardized testing and overly homogenic schooling leads to the diagnosis of LD because it is a fallacy that all people learn or process information the same way.
Another problem with including LD/ADD/ADHD as a disability under the ADA is that this diagnosis is rewarded in academia to the point of encouraging faking it. A person with a LD can take six hours to take the SAT as opposed to three hours. In colleges, an LD student can ask to take multiple choice tests home and ask for much more time to complete everything. This may provide an incentive to claim an LD. Harvard’s graduating class in 2011 consisted of 2,058 students that were picked out of a field of well-qualified 22,955 applicants. Having three extra hours to take the SAT could be a competitive advantage.
LD is somewhat akin to the diagnosis of an epidemic in search of a disease. Nothing in this article is meant to cast aspersion on the existence of legitimate learning disabilities like dyslexia, which are real conditions. Unfortunately, the definition and diagnosis of LD is democratic and general enough to include anyone-it is there for the taking. There are a number of medical doctors that dispute the existence of learning disabilities completely, comparing it to a for-profit hoax because of the lack of scientific evidence and what they term is the massive for-profit industry that has mushroomed because of it.
In 2008, President George W. Bush, signed the Americans with Disabilities Act Amendments Act of 2008 (“ADA Amendments Act”) which became law in 2009. This act broadened the definition of disability to include “individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.” Wearing contact lenses or glasses, however, is not alone to be considered a physical impairment casting one with a disability under the ADA. Also, “reading and bending” were added to the ADA’s original definition of “major life activities,”-the list now includes anything that impairs one’s ability in, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working”-list is not apparently meant to be limited to these enumerated activities and may include others.
This presents a lessening of the protections afforded under the ADA to people with more legitimate disabilities, who need accommodations entering buildings, parking, require service animals, etc. throughout their entire lives. Using the principles behind Brown and its companion cases that made discrimination based upon race unlawful to extend to discrimination against people with LD/ADD/ADHD is a cheapening of a monumental case. An important principal carried to a seemingly silly conclusion.@
R. Tamara de Silva Chicago, Illinois