Thread: Equal Protection Under the Law.

Originally Posted by adaher

There are only two coherent positions unless someone can articulate a doctrine I haven't considered: either you believe that marriage is between a man and a woman, or you believe that marriage is between any two people or group of people who are in love and want to be joined in union. Anything else is just going along with whatever is in fashion for the enlightened crowd. And I've noticed these are also the people most likely to flaunt their moral superiority.

There is at least one more coherent position. You cannot force homosexual marriage supporters to address concerns about other theoretical marriages in order to grant legitimacy to their pursuit of civil protections. And you cannot rationally discriminate against one group of people based only on your fear of what another group of people may do in the future.

No. A progressive tax with only a standard deduction would be okay by me. Or at least deductions that were not primarily motivated by politics.

Originally Posted by timj219

There is at least one more coherent position. You cannot force homosexual marriage supporters to address concerns about other theoretical marriages in order to grant legitimacy to their pursuit of civil protections. And you cannot rationally discriminate against one group of people based only on your fear of what another group of people may do in the future.

Oh, that much I totally agree with. I do not oppose gay marriage even though I believe the arguments also apply to other types of nontraditional marriage. That would just be cantankerous for the sake of being cantankerous. I only point out where the arguments lead to show that it's wrong to call people who aren't yet on board with same sex marriage bigoted. Polygamy will be legal in our lifetimes, the initial court battles are already being fought and in the Netherlands, civil unions among polygamists are legal(provided they are all marrying each other, so it mainly applies to bisexuals). But right now, the vast, vast majority of Americans, including gay rights supporters, are against polygamy. So their delusions of moral superiority need to be called out. People are coming around on gay marriage, some people just need more time than others. Calling them bigots doesn't do our political discourse any favors or change any minds, and it's especially objectionable given that most gay marriage opponents don't hate gays. And when public opinion does start to turn on polygamy, these same preening morons will act as if they were always enlightened, and how come other people are so hateful for not realizing it as quickly as they did?

Originally Posted by Marcus1124

It is both. The general power to levy taxes comes from what you refer to as the General Welfare clause (and, it is only that, a grant of general power of taxation, not an independent grant of general power to spend). That power is, like all powers, subject to limitations provided for in the document.



First, homosexuals are NOT 'similarly situated' in that they are seeking to marry members of the SAME sex, whereas heterosexuals are seeking to marry members of the OPPOSITE sex. No individual is barred from entering into marriage (marriage being defined as two individuals of the opposite sex, of sufficiently distant lineage). That they do not by virtue of their own individual sexual orientation find themselves wanting to avail themselves of the opportunity to join in a legal union with another individual of the opposite sex of sufficiently distant lineage does not itself call into question equal protection.

Now, some have tried to compare this to the issue of interracial marriage. Well, there is one fundamental difference, constitutionally. The Constitution explicictly bars discrimination on the basis of race at times, it does no such thing with regard to sexual orientation. It is arguable whether the courts validly applied the equal protection clause to require states to allow interracial marriage, but that merely lessens the case for courts to require it. Also, if Obama believes gay marriage to be a fundamental right, subject equal protection...isn't he being a complete coward in leaving it for states to decide for themselves, rather than pushing that argument in Federal courts? Also, race is a completely inate quality, whereas homosexuality is not (100% of identical twins are of the same race, whereas the percentage for sexual orientation is well below 100%)

Nor does this represent discrimination on the basis of sex, because the law applies equally to all individuals, regardless of sex. It would violate equal protection if women were allowed to marry other women, but men were not allowed to marry other men.

When I say "similarly situated" I am referring to legally married same sex couples and legally married mixed sex couples.
Let the state decide who can marry, but once it does, a married couple is a married couple.
I don't believe you have an equal protection problem with a state refusing to perform a marriage, I do think you have an equal protection problem with a state refusing to recognize some legal marriages performed by another state, and you have a full faith and credit problem.

Originally Posted by adaher

Now progressive taxation, that's an interesting case too. I agree that it could violate equal protection, but we also have an amendment to the Constitution allowing it, so the argument is legally moot.

To me, the real reason progressive taxation violates equal protection is not the philosophy. I can see goober's argument. But compare progressive taxation to the death penalty. Why was the death penalty overturned in the 1970s before being reinstated later on? Because the death penalty AS APPLIED violated equal protection. Progressive taxation as applied violates equal protection, because there are exemptions that some classes of people can take advantage of and others cannot. So you can have two people making $300,000/year, and one will pay 15% and the other will pay 35%. And I'm not just talking about the capital gains vs. earned income difference, I'm talking about all the other exemptions, like the mortage interest deduction or favorable treatment of certain kinds of investments or other behaviors. The reality of the progressive tax is that politically connected groups get to pay a low rate, while politically disadvantaged groups pay a high rate. Even if their situations are the same.

Not to put too fine a point on it, but if 2 people make the same income, qualify for the same deductions and credits, they are similarly situated, they pay the same tax.
If one contributes more to charity, or bought a Prius, or installed solar panels, then the situation is different and the difference in taxes is based in the difference in situations.

If one was going to apply the Equal Protection Clause to Taxation you would probably cause a host of unintended consequences because that is not the intention of the amendements in question. If someone was going to try anyway throwing public purpose out the window, I suspect the result would end up being a slightly progressive tax system with zero mechanisms available to reduce one's tax rate via deductions. The consequence would be many. One, the tax treatment of married couples both earning income vs. single-income couples vs. single people would all change. Two, deductions for children would be gone. It coule be argued that the deduction would discriminate against those without kids, one pays less at the expense of another. Another may be deductions for dealings with a primary residence with a mortgage (discrimination against rent residence tax filers.) The list would be endless going against the public purpose of deductions. The concept of public purpose has been in front of the Supreme Court before. It has been ruled that the Government can and must in some cases discriminate based on factors that matter for a legitimate public purpose.

Think about that for a moment just narrowing in on public purpose. Speed limits could be argued that there is discrimination against people who drive fast yet the public purpose is not everyone does thus a danger would be public saftey. This same idea exists for taxes that have a specific purpose, like tabacco tax. It could be argued that a cigarette tax discriminates against smokers as no one else is taxed but the smoker. An Equal Protection argument would terminate at an argument about public purpose, probably related to the distributed healthcare costs related to long term smoking consequence.

On to the OP subject, If the argument is the wealthy are being descriminated against because of income level then the response would end up being public purpose. The same public purpose that allows so many deductions based on a series of conditions. Understand that we would probably be having a very different conversation if we talked about tax rates being based on race. There you would have an Equal Protection argument to make on what is the public purpose justification for tax rates based on race. However when it comes to tax rates based on income level the Equal Protection Clause was not intended to be something that applied. Very few tax statutes of any kind have been struck down using the Equal Protection Clause and those that have ended up being about something that did not pass the "public purpose" bar. All the government has to do is come up with a "public purpose" for taxation based on income levels and your Equal Protection Clause argument becomes worthless.

Originally Posted by goober

Not to put too fine a point on it, but if 2 people make the same income, qualify for the same deductions and credits, they are similarly situated, they pay the same tax.
If one contributes more to charity, or bought a Prius, or installed solar panels, then the situation is different and the difference in taxes is based in the difference in situations.

Eh, maybe, but the fact that the situations are favored or disfavored based on political power of the group involved tends to make the tax system grossly unfair. And I'd be willing to bet that there's a disparate impact on minorities, since minorities are more likely to be renters and unmarried, and less likely to have a Prius or install solar panels. In the death penalty decision, the court didn't feel it had to prove intent to discriminate, the fact that the death penalty had a serious disparate impact was considered sufficient evidence that it was unconstitutional as applied. If not for the income tax amendment pretty much giving Congress carte blanche to do whatever it wanted, I think the progressive tax as it is applied in the real world could be considered a violation of equal protection.

Whereas, a progressive tax without deductions other than a standard deduction would be fine. And from a real world standpoint, why would anyone oppose such a tax system? Do any of the deductions aside from the standard per person deduction really serve a vital policy purpose? I can't think of even one.

timj219
Being wealthy is a lifestyle choice. Not a biological feature. I know republicans like to pretend federal income tax is the only tax so they can promote boons to the wealthy like the flat tax. But it just isn't so. There is no such thing and never can be any such thing as a tax system that is equal in all ways for everyone at all times.

We treat people who commit crimes differently than we treat people who do not. We treat people who own private jets differently than we treat people who ride the bus. We treat children different than adults. There is nothing wrong with treating some groups different than others as long as the differentiation does not rest on race, sex, sexual orientation or other irrelevant biological factors.

If sexual orientation is strictly biological, why is the occurence of dual homosexuality among identical twins not 100% (no where near that in fact). And if one can argue that the societal interest in the institution of marriage as a legal construct is to promote the propogation of the species and raising of progeny through the natural and time tested optimal method, two parent families, how is it not a perfectly valid distinction same-sex couples are completely incapable of procreating together.

And how is age not a biological factor? Insofar as public policy is concerned, I think that the distinction between children and adults is a pretty obvious one, but what about distinctions based on age other than child/adult? Why is it not a violation of equal protection to provide certain benefits to people above a certain age, but not those below that age. In the case of the distinction between child/adults, it is not really age that is the determining factor, but age as a proxy for the real issue, which is mental and intellectual capacity. That is not the case once you start making distinctions on age separate from that distinction.

As for it not being possible to have a tax system which is equal in all ways for everyone at all times, that is simply not true. It would be perfectly "equal" to simply divide the cost of government by the number of people in the country and have each pay an equal share. The question becomes, constitutionally, is what metric of "equal" is required under equal protection.

BTW, are government programs which give preferential treatment to bids by minority or women owned firms a violation of Equal Protection?

Originally Posted by adaher

Whereas, a progressive tax without deductions other than a standard deduction would be fine. And from a real world standpoint, why would anyone oppose such a tax system? Do any of the deductions aside from the standard per person deduction really serve a vital policy purpose? I can't think of even one.

Three Reasons:
1. Cynical: Income tax is, as the author of The Creature of Jekyll Island said, a tool of a totalitarian regime. Manipulating the tax code yearly keeps tax accountants and tax lawyers in business.

2a. Principled: A Christian would say tithing is the only tax system that is Biblically supported. This has 2 implications. First, taxes should not be higher than 10%. Second, everyone should pay the same rate. "Standard deduction" is just another opportunity for arbitrary and manipulation, corrupting everyone who makes below the "standard deduction" to be for entitlements they do not pay for.

2b. Principled: As a Libertarian, the only morally justifiable taxes are voluntary. Income taxes should be 0% and government reduced to the size it was for the first 150 years of America's existence.

Originally Posted by JohnLocke

1. BEHAVIOR/ABILITY DISCRIMINATION
- handicap parking
- special education (~ 10-30 x $/student)
- pedophiles (consensual)
- criminals (voting & guns)
- blind (driving licenses)
- drunk drivers (license revoked)
- denied loans just because of inability to pay
- Welfare
- Social Security (Long Term Disability)
- Medicaid
- Gay Marriage
- Necrophilia Marriage (non-living discrimination)
- Polygamy
- Bestiality Marriage


2. AGE DISCRIMINATION
- Voting
- Retirement
- Social Security (Retirement)
- drivers license
- buying alcohol
- running for office
- consent in marriage
- consent in sex (pedophiles)


3. SEX DISCRIMINATION
- Father's award of joint physical custody
- Violance Against Women's Act
- Selective Service
- Planned Parenting (Men's Health)
- Registry for Sex Offenders
- WIC (Women, Infant, Children)
- Prison Population

4. FINANCIAL DISCRIMINATION
- progressive tax rates
- means testing for Social Security, Medicare, financial aid for college
- denied loans just because of inability to pay


5. RACIAL DISCRIMINATION
- MLB (% of Whites)
- NBA (% of Whites)
- NFL (% of Whites)
- BET (Black Entertainment Television)
- NAACP (National Association for the Advancement of Colored People)

Discrimination or discernment has become a destroyed concept. Discrimination/Discernment is good like in recognizing UNEQUAL ABILITY/BEHAVIOR ought to result in different treatment such as denial of loans, drivers licenses to blind and gay marriage.

Originally Posted by Marcus1124

BTW, are government programs which give preferential treatment to bids by minority or women owned firms a violation of Equal Protection?

Agh! Affirmative Action is another example of socially acceptable discrimination and a big one!

Originally Posted by Marcus1124

If sexual orientation is strictly biological, why is the occurence of dual homosexuality among identical twins not 100% (no where near that in fact).

Human homosexuality occurs in similar percentage of the population as other mammals. This isn't 200 years ago we no longer need to reward people for procreating. In fact willingness to adopt might be more valuable to society right now than ability to multiply. Dividing the cost of government equally among citizens is patently unfair since not everyone benefits equally from government expenditures of the tax money.

Originally Posted by timj219

Human homosexuality occurs in similar percentage of the population as other mammals.

ABNORMAL behavior may occur with similar frequency across species, like whales committing suicide by beaching themselves.

With that said, I am looking forward to you response to Marcus' point about identical twins not be homosexual as it undermines the "they are born that way" argument.

Originally Posted by JohnLocke

Three Reasons:
1. Cynical: Income tax is, as the author of The Creature of Jekyll Island said, a tool of a totalitarian regime. Manipulating the tax code yearly keeps tax accountants and tax lawyers in business.

2a. Principled: A Christian would say tithing is the only tax system that is Biblically supported. This has 2 implications. First, taxes should not be higher than 10%. Second, everyone should pay the same rate. "Standard deduction" is just another opportunity for arbitrary and manipulation, corrupting everyone who makes below the "standard deduction" to be for entitlements they do not pay for.

2b. Principled: As a Libertarian, the only morally justifiable taxes are voluntary. Income taxes should be 0% and government reduced to the size it was for the first 150 years of America's existence.

Oh what nonsense. A government that small could never accomplish the social engineering you desire.

Originally Posted by JohnLocke

Now we have to turn laws and even Constitutions into dictionaries so the culture will not be torn apart