The day after I wrote the below post, Gov. McDonald issued an executive directive purporting not to tolerate employment discrimination of any kind within state entities. A few points, upon which I’ll flesh out after vacation.
Warner and Kaine issued legally binding executive orders; McDonald issued a non-legally binding directive. The directive fails to specify, as the orders did, protection against gay discrimination. We’ll see how those distinctions play out.
More importantly, we need to talk about class. Nishant’s comment below and McDonald’s directive point to the 14th amendment’s equal protection clause as a source that already protects against gay discrimination; so, no further law is needed. That’s not the case. And for quick proof: if that were so, don’t ask don’t tell would be unconstitutional.
To borrow from Fish: there’s no such thing as no discrimination. To discriminate = to make a decision based on particular factors. The constitution allows discrimination betwen sets of people, like those qualified for a job and those not, those with x education and those with y education. A world without discrimination is impossible.
What the Court has done with discrimination regarding types of people is this:
For most classifications, the government decider must have some rational basis, connected to the underlying policy goal, to make the distinction. That us an amazingly easy test to pass in front of a judge. If that classification is gender, the test is a bit tougher- got to be substantially related. And if the classification is race, ethnicity, or dealing with a fundamental right like privacy, it must be narrowly tailored to meet a compelling government interest. That last test is quite tough.
Protections against gay discrimination fall onto the first set: they exist but are easy to surmount. Gay rights pursuant the 14th amendment’s equal protection clause are, returning to my borrowing from Fish, akin to your ‘right’ to yell ‘fire’ in a movie theater. As such, it seems to me an intellectual head fake to direct state agencies against discrimination pursuant to the equal protection clause.
