Category Archives: equal protection

Kadrmas v. Dickinson Public Schools

487 U. S. 450

June 24, 1988

In North Dakota, rural school districts were urged to “reorganize” or consolidate. A law passed by the legislature allowed non-reorganized school districts to charge a fee for school bus transportation. The Kadrmas family, who lived near poverty level, objected to paying the bus fee in their non-reorganized school district. They argued that it violated the Equal Protection clause because reorganized school districts did not require a fee, and that it violated a more general right to education.

The Supreme Court disagreed in a 5-4 vote. O’Connor began by brushing aside a truly asinine and meritless standing challenge. Turning to the merits, she said that there was no Constitutional right to public schooling, and that laws which cast a greater burden on the poor were not inherently unconstitutional. The law served a rational purpose of helping public schools cover transportation costs, and that was enough. Although the Court had previously ruled that certain judicial proceedings be provided free of charge, O’Connor distinguished those by saying that no other remedy existed. In contrast, there were other means of getting to school apart from buses, and indeed, Sarita Kadrmas had never missed a day of school. The Equal Protection challenge was turned back because the state had a valid reason for distinguishing between reorganized and non-reorganized districts – namely, encouraging the non-reorganized ones to reorganize.

Stevens, joined by Blackmun, asserted that encouraging reorganization was not a good enough reason to allow for the charging of bus fees. He would find an Equal Protection violation. Marshall, joined by Brennan, huffed about how insensitive the Court was being to poor people. Because of the paramount social importance of education, Marshall felt that law which imposed heavy burdens on poor pupils needed to be struck down. He also felt that the majority was not following the principles of the 1982 Plyler v. Doe ruling, which required states to accept illegal immigrants into the school system.


Clark v. Jeter

486 U. S. 456

June 6, 1988

For illegitimate children, Pennsylvania had a 6 year statute of limitations for seeking child support. No statute of limitations existed for legitimate children. A single mother tried to obtain child support 10 years after her daughter’s birth, and charged that the statute of limitations violated the Equal Protection clause. The Supreme Court had previously held that classifications based on legitimacy were subjected to intermediate scrutiny.

The Supreme Court unanimously held the 6 year limit invalid under the Equal Protection clause (the Court also brushed aside a preemption challenge as not properly raised). O’Connor said that the two principal considerations under intermediate scrutiny were whether the time limit was reasonably long, and whether the time limit was strongly related toward concerns about fraud or stale evidence. In a rather conclusory manner, O’Connor posited that 6 years was still too short for a single mother to realize that she needed child support, and that advances in DNA technology made concerns about fraud or stale evidence not worth listening to. Furthermore, Pennsylvania allowed illegitimate paternity to be established more than 6 years after birth in some other contexts, making the 6 year limit for child support even less valid.

At a minimum, Rehnquist and Scalia should have dissented. This ruling is fairly blatant ipse dixit activism. 6 years is plenty of time to seek child support, and I have no sympathy for anyone who misses such a ridiculously long deadline. Illegitimacy, much like fornication in general, is a terrible thing, and not something the law should in any way encourage. Assuring single mothers that they could extract money out of the father after ignoring him for a decade was hardly the right message for the Court to send out in 1988. Back then, the illegitimacy rate was just under 30%. Now it’s just over 40%.

A Biblical family structure blesses everyone. The children are blessed, the husbands and wives are blessed, the community is blessed, and the whole nation is blessed. Striving toward a Biblical family structure will sometimes result in incidental stigmatization. O’Connor and the post-Christian Supreme Court are so horrified by incidental stigmatization of illegitimacy that they will use the Equal Protection clause to kill any law that fights illegitimacy. This may slightly lessen the stigma that a small number of illegitimate children feel, but in the aggregate, the nation is cursed by such a marshaling of priorities.

What is really worse: a 5% illegitimacy rate with some legal stigma, or a 40% illegitimacy rate with no legal stigma? Similar equations could be made for abortion or divorce. No one likes being stigmatized, but are the hurt feelings of a few really more important than the additional millions of lives scarred or even killed because divorce, single motherhood, and abortion have been made so legally easy?

Lyng v. Automobile Workers

485 U. S. 360

March 23, 1988

The famous 1981 omnibus budget denied strikers the privilege of receiving food stamps. Predictably, unions were outraged, and tried to get this declared unconstitutional. They argued that it violated the associative and expressive rights of strikers, along with the Equal Protection clause.

The Supreme Court smacked down the unions 5-3 (Kennedy did not participate). White pointed out that food stamps were a privilege, and that the government is not required to fund every exercise of associative or expressive rights. Furthermore, it was pretty unlikely that anyone would decide against joining a union or living in a household just because of the food stamp issue. The government had not done any affirmative harm against unions or strikers – it had merely withdrawn a financial privilege. Finally, White said there was plenty rational basis for singling out strikers. In particular, it made the government more neutral in labor disputes, because strikers could hold out much longer if they were getting tax subsidized food stamps indefinitely.

Marshall, joined by Brennan and Blakmun, threw a babyish temper tantrum and called it a ‘dissent.’ He could not find a single rational basis for the law. Saving federal money was not good enough, because you could save federal money by discriminating against a protected class. Wanting to allocate money to those actually out of work was not good enough either, because those who strike are still in need of food. Finally, neutrality in labor disputes was not good enough, because company officials who oppose strikers could still get food stamps during a strike. Then, Marshall argued the law was simply a measure geared toward discouraging and ending strikes, and punishing those who chose to strike. You might think that this would constitute a pretty solid rational basis for the law, but in Marshall’s eyes, such an “animus” toward strikers was hateful and bigoted, and thus irrational.

Marshall is dead wrong. Strikes are evil, and emphatically do deserve to be squelched. And those who strike emphatically do deserve to suffer consequences for it. The last thing strikers deserve is having their evil rewarded by government money. Here’s a few Bible verses on the subject:

1 Peter 2:18: Submit with all fear to your masters, not only to the good and gentle but also to the cruel.

2 Thessalonians 3:10: This is what we commanded you: “If anyone isn’t willing to work, he should not eat.”

1 Timothy 5:8: But if anyone does not provide for his own, that is his own household, he has denied the faith and is worse than an unbeliever.

There you have it. Once again, Brennan, Marshall, and Blackmun are those who “call evil good and good evil.” Sadly, it won’t be the last time.

Pennell v. San Jose

485 U. S. 1

February 24, 1988

A rent control ordinance in San Jose laid out several objective tests which limited the rent increases that a landlord could charge. But in addition to these tests, rent increases were also to be limited if a hearings officer concluded that they caused “hardship” to tenants. Landlords objected that this violated the takings clause, the due process clause, and the equal protection clause. The thrust of the protest was that the ordinance asked landlords to outright subsidize poor tenants, rather than to merely charge a fair price.

The Court upheld the ordinance 6-2 (Kennedy did not participate). Chief Justice Rehnquist first turned back a standing challenge. There was no definite instance yet of a landlord being denied a rent increase on the hardship basis, but Rehnquist accepted that it was indeed a very likely possibility in the immediate future. The lack of a developed record was enough of a roadblock though that the Court declined to address the takings clause issue. Moving on to the due process and equal protection clauses, Rehnquist said that protection of the consumer’s welfare and interest was a rational end of legislation, and thus allowing certain tenants to be charged below the objective reasonable price was not Constitutionally troublesome.

Scalia, joined by O’Connor, agreed with the majority on everything except the takings clause. A close reading of recent takings clause decisions showed that an underdeveloped record was no impediment to considering the issue. Moving to the merits, Scalia said that forcing a landlord to charge less than the ‘fair’ price to needy tenants was indeed a regulatory taking. He compared it to forcing grocery stores to sell its food at lower prices to those suffering economic hardship. If San Jose wanted to alleviate hardship to the poor, Scalia said they could do so through welfare or public housing. I think this opinion is right, and the Court should have addressed the takings clause challenge on the merits (of course, I’ve never really been one for abstention based on standing issues).

McCleskey v. Kemp

481 U. S. 279

April 22, 1987

During an armed robbery of a furniture store, Warren McCleskey murdered a police officer who had responded to a distress call. McCleskey was black and the police officer was white. After being convicted and sentenced to death, McCleskey argued in a habeas petition that race had played an impermissible role in his sentencing. As proof, he put forth a statistical study created by David Baldus, which showed that murderers who killed white victims were 4.3 times likelier to receive the death penalty than those who killed black victims.

Justice Powell wrote the majority opinion. The Court ruled 5-4 that the Baldus study did not prove that McCleskey’s sentence was unconstitutional. In response to an equal protection argument, Powell said that McCleskey did not specifically show that his sentencing was based on the race of the victim, and that the Baldus study could not support an inference that he had been victimized by racial discrimination on the part of the jurors or the State of Georgia. Powell then turned to McCleskey’s Eighth Amendment claim. He noted that McCleskey’s punishment was not “disproportionate to the crime in the traditional sense,” but only in relation to how others were sentenced. Because death penalty sentencing inevitably called for some discretion in jury judgments, this did not bother Powell. While racial disparities were troubling, Georgia’s process aimed to minimize them, and it would be unreasonable to expect all disparities to disappear in a discretionary system.

Powell closed with one extraordinarily powerful argument: “McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties.” Thus, if in any crime at all sentencing disparities based on any illicit factor at all (such as race, gender, intelligence, wealth, or attractiveness) were to be found, any punishment at all would have to be declared unconstitutional.

Brennan, joined by Marshall, Blackmun, and Stevens, pointed out that the Court had used statistical disparity to find racial discrimination in the past, and added that the finality of the death penalty mandated that statistics showing such discrimination be given special weight. Georgia’s Jim Crow history lent further proof to the contention that McCleskey’s sentence had been influence by race. He also argued that the jury’s right of discretion ends when that discretion is based on racism. In response to Powell’s slippery slope argument, Brennan stressed that the criminal justice system would not be dismantled absent especially sophisticated and convincing statistical and historical proof.

Blackmun also wrote an opinion joined by the other three dissenters. He faulted the Court for ignoring the possibility of discrimination by the prosecutor, noting that they played a fundamental but horrendously unsupervised role in the system of capital punishment. Blackmun also contended that it was no better for race to be a de facto part of the process than it would be for race to be a de jure part. Finally, he submitted that the Baldus study could not possibly provide more proof for the assertion that Georgia’s sentencing system was racist. In a brief dissent, Stevens suggested that racism would not be a problem if the death penalty were restricted to only the most truly horrifying and egregious cases.

The Baldus study cannot be disputed. Racism plays a role in who receives the death penalty, and America has a moral obligation to end these disparities immediately. One day, God will judge and punish America for its evil and racist system of justice. But I can’t help but be annoyed with the dissents. Whatever the sins of McCleskey’s jury, McCleskey still committed a brutal murder, and he still deserved to die. There is absolutely no moral right to leniency just because others get leniency for the wrong reasons. Sin does not become less worthy of death because some sinners are unjustly given mercy. Mercy, by definition, is undeserved and not an entitlement. As I’ve mentioned before, God was not unjust in killing Ananias and Sapphira, even though He let others live who committed precisely the same sins.

The scripture says “Whoever sheds the blood of man, by man shall his blood be shed.” There can be absolutely no partiality. The rich must be sentenced to death just as the poor are. The murderers of black victims must be punished as murderers of white victims are. That will require Americans coming to grips with the true gravity of sin. The capital punishment system is broken, but the solution is not, contra the dissenters, abolishing the system – the solution is fixing it. Even when punishment is unevenly applied, the wages of sin is still death.

Jesus once warned about taking the speck out of another person’s eye when there’s a plank in your own. He spoke of straining at gnats, and swallowing camels. I was heavily reminded of this imagery as I read dissents which labored hard to minimize violent and cold-blooded murder. The approach of the liberal Justices in criminal cases is almost invariably one of privileging gants and specks over camels and planks. Over and over, they’ll say ‘a murderer’s guilt does not matter – what really matters are the comparatively trivial faults of policemen, prosecutors, and juries.’

Toward the end of Brennan’s opinion, he makes this statement “Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society’s demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life.

It was when I read those words that I lost all respect for Justice Brennan. He, of all people, had no moral authority to accuse the Court of not hearing the voices of the voiceless. As a Catholic publication once wrote, “there will never ever be any poor who are poorer than unborn children, who are not yet favored with even the power to cry, to as much as murmur a protest against an attack on the single possession they have: life. The poor we will always have with us, but now there is this poor who is to be denied even the opportunity to share the inheritance of the earth. If mother, father, doctor, nurse, the whole of society’s mores, the whole of its civil authority, if all conspire to destroy this child, who – what – is left to defend him?” In his time on the Supreme Court, Brennan heard the voices of brutal murderers, but he deliberately chose to ignore the voices of innocent unborn children.

“This is why the law is ineffective and justice never emerges. For the wicked restrict the righteous; therefore, justice comes out perverted” – Habakkuk 1:4

United States v. Paradise

480 U. S. 149

February 25, 1987

For decades, Alabama discriminated against blacks in hiring state troopers. Finally, in 1972, a District Court judge addressed this unconstitutional discrimination by mandating that Alabama hire a black 50% of the time when a spot came open, until blacks accounted for 25% of the total state trooper force. Alabama dragged its feet in response to this order, and almost never gave the black troopers it hired promotions. Finally, in 1984, the District Court imposed another remedy: blacks would have to receive 50% of the promotions until a workable system was put in place to insure that promotion discrimination would not happen in the future. The United States, intervening as a petitioner, objected to this order, claiming that it would violate the equal protection clause by discriminating against whites.

The Court upheld the District Court’s remedy in a 5-4 vote. Brennan, joined by Marshall, Blackmun, and Powell, wrote the plurality opinion. Brennan said that a remedy which takes account of race must be narrowly tailored to serve a compelling government interest. Ridding promotions in state police forces from racial discrimination was such a compelling interest, even if promotion was not the initial focus of the original ruling from 1972. The remedy was also narrowly tailored. It was reasonable response to Alabama’s foot dragging, it only applied until non-discriminatory hiring procedures were developed, it solved the existing trooper imbalance quickly, and it did not require the termination of any white troopers. Given all this, the remedy did not violate the equal protection clause.

Stevens concurred in judgment. Unlike Brennan, he did not feel that the District Court was even required to make its remedies narrowly tailored. Stevens argued that a court should have broad discretion in addressing racial discrimination, and that remedies should stand as long as they were reasonable. Powell joined the plurality in full, and wrote a concurrence. It added little of substance, but it underscored Brennan’s argument that the remedy was narrowly tailored when examined against the facts of the case.

O’Connor dissented, and was joined by Rehnquist and Scalia. She felt that the remedy focused too much on speed and percentages, and that there was too little concern about the racial discrimination that the remedy temporarily mandated. She also argued that there were a lot of other less intrusive remedies that the District Court didn’t even bother to stop and consider. White filed a two sentence dissent which contained the unelaborated statement that he agreed with most of O’Connor’s arguments.

From time to time, one comes across power hungry and self-important District judges who impose truly extraordinary remedies in the face of violations which do not merit such raw exercises of judicial fiat. Paradise is a borderline case for me. Like O’Connor, I do think the District Court should have found another remedy in light of the equal protection issues raised by reverse discrimination. Given how long the litigation had run though, the remedy may have been barely within the bounds of discretion. If there’s any lesson to be learned from the tortuous Paradise saga, it’s that it’s best not to discriminate in the first instance.