The Essential-Liberalism Manifesto (Article VIII)
VIII. RIGHT TO EQUAL PROTECTION
1. No legally
recognized hereditary classes: Castes or other hereditary
classes are not legally recognized.
2. Equal protection basic principle:
Society should seek to have as many of the aforementioned
fundamental rights as possible (to life, liberty, property, and the
pursuit of happiness), the laws that embody them, and the
equal protection from their violation apply to as many people as
possible within its jurisdiction. Therefore, classifications based
on gender, race, ethnicity, age, religion, national origin,
language, wealth, education, marital status, health, disability,
sexual orientation, citizenship status, criminal history, and other
such status classifications can only be used to deny their members
the enjoyment of these rights, and the equal protection from their
violation, with good cause. To determine what constitutes “good
cause,” and what other factors need to be evaluated in matters
concerning equal protection, several guidelines are followed:
a. An element of reasonableness, at a minimum,
must usually be shown to substantiate the “good cause” for the
denial. For example, denying every person under the age of 15 the
right to drive an automobile has an element of reasonableness;
however, denying every adult over the age of 60 the right to
practice their religion completely lacks the element of
reasonableness. Another example: In the private sector it is
reasonable to give preference to job applicants with a particular
level of health, education, skill, and language familiarity if such
elements can reasonably be said to contribute to increased business
profits in that particular business, and to give less preference to
those applicants lacking in such skills or traits.
b. The most restricted status classification is that of incarcerated
criminals, whose rights—except the right to life, to the most
fundamental and personal liberties, and to due process—can be
greatly restricted. The only two other broadly restricted
classifications, though considerably less restricted than criminals,
are those of minors and non-citizens.
c. In respect to one’s fundamental rights to life, liberty,
property, and the pursuit of happiness, the right to life is the
most important; therefore, no classification can limit such right.
Though there is no universally agreed-upon hierarchy of the
importance of rights, some rights are more uniformly regarded as
important than others. For example, buying food at a grocery store
is directly related to the right to life, and therefore such food
establishments cannot discriminate against any classification of
individuals. However, private country clubs, which mostly provide
very narrow association and recreation rights, may do so under
certain circumstances.
d. The more injurious the discrimination, the higher the standard
should be for permitting it. For example, giving a 1% income tax
credit to nurses to encourage the study of the nursing profession is
less injurious to non-nurses than the harm suffered by disabled
persons not having their special access needs accommodated in
government buildings.
e. The less an activity associated with a legal right has
substitutes, the less legally permissible is the denial of equal
protection for its enjoyment. For example, because there is only one
public voting procedure instituted for an election, no
classification except that of non-citizens, incarcerated criminals,
and minors may lead to a denial of the right to vote in a public
election. Another example: Public transportation has few or no
substitutes for many people who do not have their own means of
transportation; therefore, virtually no classification can prevent
the equal right to the enjoyment and use of public transportation.
The same is true for nearly all rights to liberty and property. The
right to the pursuit of happiness, however, typically does have more
substitutes. For example, when women-only gyms refuse membership to
a man, he still has access to mixed gyms and men-only gyms, and he
can exercise as well in private, and thus in the eyes of the law any
of these substitutes is sufficient so as not to legally require
women-only gyms to accept male members.
f. Some classifications encompass many more people than others. For
example, the classification of one gender represents approximately
50% of the population. Therefore, denying equal protection to such a
broad classification must be justified by a very high standard of
proof, showing that the need for the denial of equal protection in
its current form is substantially related to a very important
societal interest. There are also some classifications which
encompass within them many other classifications. For example, race
encompasses most other classifications, including gender, age,
religion, etc. Therefore, an even higher standard of proof and
demonstration of an even greater societal interest has to be shown
in order to deny members of such groups equal protection.
g. As it represents an entire population in a particular area, the
government and its positions, entitlements, and funded services can
be subject to fewer classification restrictions than those of
private entities, whose freedom to make independent choices for
their own self-interest should also be respected. Non-political
government positions must be open to all citizens who meet the merit
requirements of the position, and those selected must be among those
with the highest merit. Government contracts must be awarded based
on a fair and competitive bidding process. Government funding must
go to all similarly situated groups or activities.
3. Demonstrating wrongful discrimination: In seeking to demonstrate that one’s equal protection rights have been denied in a specific case, one has to show that the denial was the result of a discriminatory intent, rather than the result of another potentially valid reason. For example, if a member of a racial minority was not hired for employment, and a member of a racial majority was subsequently hired for the same position, it is not enough to show this mere fact to prove a denial of the minority member’s equal protection rights. Instead, such member would need to show that other, legally permissible, explanations for why he or she was not hired were not at play, or to demonstrate that the person hiring had a clear intent to discriminate against them because of their race.
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Page last updated: October 15, 2008