Archive for the ‘Equal Protection’ category

How Do You Spell Hypocrite?

April 19, 2007

The Thomas More Law Center.

In you are unfamiliar with these folks, they’ve got a lot in common with Roy Moore, being fervent defenders of the state’s power to display the ten commandments:

The Thomas More Law Center announced Monday, December 13th [2004] that it has filed a friend of the court brief with the United States Supreme Court in support of Ten Commandments displays on public property.

So if state or local governments want to endorse Christianity, that’s all well and good. But what if some other religion wants to put its symbol on public property? All that stuff about acknowledging god and religious freedom goes out the window:

A federal appeals court ruled Tuesday that followers of the Summum faith can display their Seven Aphorisms in Duchesne and Pleasant Grove city parks that already hold monuments of the Ten Commandments. 

The 10th U.S. Circuit Court of Appeals noted that the parks are public forums, and restrictions on speech based solely on its content are forbidden except in narrow circumstances. 

The two decisions overturned rulings by U.S. District Judge Dee Benson that blocked Summum’s proposed monuments. In the Pleasant Grove case, the court said requiring the city to permit display of Summum’s tenets will further free speech. 

Salt Lake City attorney Brian Barnard, who represented Summum in both cases, applauded the rulings. “It’s a good day for the First Amendment,” he said. 

Pleasant Grove City Attorney Tina Peterson and Duchesne Mayor Clint Park declined comment Tuesday. They referred questions to Edward White III, an attorney with the Thomas More Law Center in Michigan, which is helping defend the municipalities against the Summum lawsuits.

The blatant double standard gets worse. Guess who succesfully argued in a previous case that these same two cities – Pleasant Grove and Duchesne – had the power to put up the Ten Comandmanets momument? I’ll give you three guesses, but the first two don’t count, because this ought to be obvious:

In a ruling released yesterday, Federal District Judge Dee Benson held that Duchesne City, Utah, acted constitutionally when it sold land on which a Ten Commandments monument sits to keep from having to remove it. This is the second case within the past five months in which two public interest law firms, the Thomas More Law Center and the American Center for Law and Justice, have collaborated as co-counsel to prevent the removal of Ten Commandment Monuments in Utah.

The Duchesne decision comes within five months after another federal judge ruled in favor of Pleasant Grove City, Utah, allowing a separate Ten Commandments monument to remain on public property. The two public interest law firms acted as co-counsel in that case as well.

That blows my mind. It would be one thing to argue that there could be no religious displays in public property; or that the city must allow all religions equal access. Either of those options would be, I think, constitutional and a good idea. But to argue that a city gets to pick and choose which religions are allowed and which are not? How do these guys sleep at night?

Then again, despite the title to this post, they probably are not hypocrites. The TMLC is pretty open about their belief that the government can only endorse Christian beliefs:

The Thomas More Law Center affirms the right of Christians to publicly practice their religion and freely express their religious beliefs.

And that is exactly what they did in these two Utah towns: Fight for the right of Christians to publicly practice their religion, everyone else be damned.

BTW, here’s a link to the 10th Circuit’s decisions.

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School Integration Cases

December 5, 2006

The question presented to the court is, basically, whether in order to integrate a public school, school officials can select students based in part on the student’s race. Thus far, it looks like the smart money is on the Seattle and Louisville school districts losing. So it will soon not only be unconstitutional to segregate students on the basis of race but also unconstitutional to do anything about existing segregation. Interesting.

Local reactions:

Three local systems, Decatur and Lawrence and Limestone counties, are under federal desegregation orders. Each works under plans aimed at making their schools more diverse.

Decatur Superintendent Sam Houston said the difference in Louisville and Seattle cases and the local cases are those two cities achieved “unitary status,” a term showing that they no longer operate under a federal court order.

“I’m not a lawyer,” Houston said. “But on the surface, it doesn’t appear our situations are the same.”

He’s probably right, for now. The new rule should not apply to districts that have yet to remedy their own historical de jure segregation. But what the cases will mean is that when the school achieves unitary status, it will probably have to stop doing everything it did to achieve that status. That is the situation in the Louisville system. What they are doing now is what they did when they were under a consent decree. But there is no more decree. So Scotus is about to tell them to quit what they are doing. Of course, what that holding will mean for Louisville and for the Alabama districts is an immediate return to the status quo ante: segregated schools.

In addition to the fascinating substance and odd impact, the case provides a test for orginalists:

The problem is that it’s almost impossible to justify striking down affirmative action programs in “originalist” terms, and the Supreme Court’s purportedly “originalist” judges have never bothered to try. If you look at the relevant jurisprudence of Antonin Scalia and Clarence Thomas, you’ll see ahistorical assertions that the language of the 14th Amendment prohibits all racial classifications along with powerful policy arguments  against the practice, but no attempt to prove that the 14th Amendment was understood at the time of its ratification to proscribe racial classifications intended to alleviate past discrimination. And the reason for this is obvious: it is implausible in the extreme to argue that, at the time of the Reconstruction Congress, the equal protection clause was generally understood to prohibit all racial classifications.

While it’s not strictly accurate to say that you can’t defend the Thomas/Scalia position on state racial classifications in “originalist” terms, you can do so only by defining constitutional principles at such a high level of abstraction that “originalism” is essentially devoid of content. If this is what originalism means, then William Brennan can be considered an originalist, Roe v. Wade is perfectly defensible in originalist terms, etc. etc.

What? You mean Scalia and Thomas are nothing more than results oriented hacks? Those are fighting words! Publius at Legal Fiction calls this “Originalism’s Ladder.”

New Jersey Gay Marriage Decision

October 25, 2006

I’ve only read the news coverage, (which also has a link to the decision, if you want to watch the oral arguments, they are here) but it sounds like it’s a Vermont situation rather than Massachusetts. That is, the court said “we don’t care what you call it, but you have to extend the the same benefits to committed gay couples that you do to committed hetero couples.”

I think that’s the right result policy wise, and it may also be the right result under N.J. law. I don’t know on the latter because I have not read the decision.

For now, I only have two questions.

First, how long before Twinkle ties this to Patricia Todd and the rest of Alabama’s Democrats, or otherwise uses it for ammo in this election?

Second, will this decision serve as the raw meat hot issue the national repubs need to enrage the the rabid dogs motivate the base for the elections?

Decision Says Title Loans Are Unconstitutional

September 1, 2006

Dan alerted me to the story. I want to say the judge is one hundred percent totally correct, and that his ruling is iron clad and unassailable. Because if title loans are unconstitutional then maybe I would not have to see any more of those stupid Title Max commercials.

I can’t say that, but I have changed my view about the opinion. I said in a comment to Dan’s post that I thought it was a bad decision. Now I’m not sure.  

Here’s the important part of the news account:

St. Clair County Circuit Judge Charles Robinson Sr. ruled the act violates equal protection rights by allowing title loan companies to charge as much as 300 percent interest a year while restricting other lenders to 24 percent annually. . . .

Waites, a St. Clair County resident, took out the loan against his truck title in 1998, agreeing to pay 25 percent interest a month, or 300 percent a year. Express Enterprise repossessed and sold the truck when Waites quit paying after making nine consecutive $100 payments, saying the $900 had only gone to interest.

Robinson ruled the result of having one borrower pay 300 percent and others having their loans capped at 24 percent was “arbitrary and capricious, and ultimately discriminates” against both traditional lenders and those borrowers “for whom the usurious rate laws were meant to protect.”

“In effect, pawnbrokers are allowed to overcharge persons who would otherwise enter into loans subject to the Alabama Small Loan Act,” he wrote.

When the Legislature makes a classification, he said, it must not be “mere subterfuge to shield one class and burden another.”

I’m guessing, based on the language about the legislature making a classification, that the decision relies on the equal protection clause. Generally, whether a statute survives an equal protection challenge is determined primarily by the applicable standard of review. If a statute, for example, discriminated against black people, then “strict scrutiny” would apply and the statute would almost certainly fail.

But that only applies in a very small number of situations. This does not appear to be one of them. “Poor people” don’t get strict scrutiny, because the group is too amorphous to adequately define. Businesses like the “traditional lenders” identified by the judge don’t get strict scrutiny either. They are powerful enough to look out for their own interests.

So the judge should have applied the lowest standard of review: Rational basis. (There is an intermediate, but it is limited to gender classifications). That means if there is any conceivable reason for a classification, it withstands the constitutional challenge.

I think the judge probably applied rational basis, because he used terms like arbitrary, capricious, and subterfuge. Those are all key terms in this standard. So he got the first step correct.

The problem is that rational basis is a rubber stamp. The requirement is not that the actual reason has to be a good reason; it’s that there has to be some rational reason, even if it isn’t the actual one or even a good one. Also, the challenger bears the burden of proof, which means they have to prove a negative: NO rational basis.

So what was the classification? Alabama’s Small Loans Act caps interest on loans of $1,000.00 or less. (Ala. Code 5-18-5(a)). However, the act exempts pawn transactions. (Ala. Code 5-18-4(b)). 

In 1993, the Alabama Supreme Court had to decide in which category title loans belonged. Section 5-19A-2(3) of the code defines a pawn transaction as follows:

Any loan on the security of pledged goods or any purchase of pledged goods on condition that the pledged goods are left with the pawnbroker and may be redeemed or repurchased by the seller for a fixed price within a fixed period of time.

In these title loans, in exchange for cash the borrower gives the title and the keys to the lender. The borrower gets the vehicle back by paying X amount by Y date. So we have the loan, the security, and the redemption. The only question is whether the title counts as a good left with the pawnbroker. If so, then the transaction is a pawn transaction exempt from the small loan limits.

The Alabama Supreme Court (Floyd v. Title Exchange and Pawn of Anniston, 620 So.2d 576 (Ala. 1993)) basically said it did not know whether or not the title was a good. And because of that uncertainty, it held that the act did NOT cover title loans. The court held that because title loans had never been regulated, that the legislature would have to clearly include them. The statute did not do so, and thus the court held that they were not included. 

So the legislature did not really exempt title loans; they exempted pawn transactions. The court decided that pawn transactions include title loans. Hence, they get exempted as well.

I’m sure there is a rational basis for exempting the usual pawn transaction. It’s normally a small amount of money, and probably the customer usually views it as a sale. They are not going to redeem it anyway, so it does not matter what the interest is. If this was just about the usual pawn transaction, it would clearly pass rational basis review.

But title loans are different. Folks need their cars and the amount of money is significant. It seems like all the same concerns that motivated the small loans cap ought to apply with equal force to title loans. Furthermore, though this does not really matter to rational basis review, it does not appear that the legislature really considered the issue of title loans. 

So maybe there is no rational basis for the distinction. That isn’t to say that regulating interests rates is a good idea. But once they regulate them, they need to do so rationally.

I’m no economist, so anyone out their familiar with economics, or banking, or whatever, let us know if there is a rational reason to regulate small loans but not title loans.