@High Seas,
High Seas wrote:
Joe - you realize I'm not trained in the law (other than anti-trust and similar legislation affecting M&A and corporate finance) and have only the general legal knowledge supposed to be common to all educated people. However I can tell you exactly why I thought Muller v. Oregon is the relevant case here, not Loving, and in fact you point to my reasoning yourself by considering homosexual marriage and openly gay military personnel as federally protected civil rights.
This is my thinking: in Muller all known law, including the 14th Amendment, and jurisprudence, including a USSC decision from only 3 years earlier, argued for Muller and against Oregon. All of that mass of law and precedent was stood on its head in the landmark 9-0 decision to which you kindly linked. The grounds for that decision were the police powers inherent to the state. These I understand tessentially are a social order / general welfare argument. By analogy in military operations police powers ensure efficiency and effectiveness required in warfare.
High Seas:
You must first understand the following:
The Fourteenth Amendment, among other things, prohibits a state from depriving any person of liberty without due process of law. All liberty, great and small, is protected. The right to marry is a fundamental liberty interest. All state regulation that infringes upon the right to marry must be NECESSARY and NARROWLY tailored to serve a COMPELLING state interest. The right to contract is an economic liberty interest. All state regulation that infringes upon an economic interest must be rationally related to a legitimate state interest.
In
Lochner v. New York (1905), the SC struck down a state regulation that set forth the maximum hours that a baker could work in a week. The SC held that state regulation of hours of work infringed upon individual liberty to contract. An individual has the right to contract with an employer for the sale of his labor. An employer has the right to contract with an individual for the purchase of his labor. This case commenced what we know as the Lochner era during which the SC struck down many economic regulations.
Subsequently, in
Muller v. Oregon (1908), the SC upheld regulation concerning the working hours of women. The SC held that the state has a legitimate interest in protecting vulnerable persons and the restriction on their working hours was rationally related to that interest. Women, because of their gender, were considered vulnerable (like children) and were under the protection of men and the state. The Lochner case was not overruled. The Supreme Court simply made an exception to the rule announced in Lochner which allowed the state to engage in economic regulation for the purpose of protecting vulnerable persons.
The Lochner era came to an end when the SC decided
West Coast Hotel Co. v. Parrish (1937). (The switch in time that saved nine.) The state may engage in economic regulation even if it infringes upon your liberty of contract so long as the regulation is rationally related to a legitimate government interest.
Muller v. Oregon (1908) was decided just over 100 years ago. As a side note, if that case was brought today, state regulation of working hours based on the worker's gender would be unconstitutional under the equal protection clause of the Fourteenth Amendment.
In Loving v. Virginia (1967), the Supreme Court struck down a state law that prohibited interracial marriages (in particular, prohibited blacks from marrying whites). This state regulation of marriage deprived persons of a liberty interest (the fundamental right to marry) without due process of law in violation of the Fourteenth Amendment. The state could not prove that the prohibition of interracial marriages was necessary to serve a compelling state interest. Additionally, the state prohibition against interracial marriages violated the equal protection clause of the Fourteenth Amendment. Although some people believe that interracial marriages are socially unacceptable, the state may not use its vast police powers as a means to place the state's imprimatur of approval on racial bigotry and thus perpetuate discrimination on the basis of race.
Loving v. Virginia is the relevant case. Muller v. Oregon has no relevance whatsoever to the issue we are discussing.
Quote:It may be that "civil rights" mean homosexuals must be free to marry and / or openly serve in all military units, and it may also be that some of the current and at least some of the past restrictions on both marriages and military operations had valid reasons for existing. Valid reasons are for example discipline and cohesion in military units and a stable social situation useful to the upbringing of children.
There are no valid reasons for racial discrimination. Are you suggesting that the Supreme Court was wrong when it decided Loving v. Virginia?
Quote:To the point: if that JP isn't in breach of any Louisiana statute (and as of now nobody can show anything to the contrary) then I also don't see how he can be accused of being in breach of civil rights laws: all he seems to have been doing is repeating the argument made in Muller by Brandeis.
You haven't been paying attention to the discussion. This has been pointed out many times by many posters. When the JP, a state actor, refused to perform a public service that he routinely performs for others and discriminated against a couple on the basis of race, the JP violated the Fourteenth Amendment to the United States Constitution, and Article I, Section 3 of the Louisiana State Constitution, and the Louisiana Judicial Code of Conduct ("A judge shall perform judicial duties without bias or prejudice") and Section 134 of the Lousiana Code:
ยง134. Malfeasance in office
Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; . . . .
* * *
Whoever commits the crime of malfeasance in office shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars or both.
http://law.justia.com/louisiana/codes/146/78317.html
The JP, as a state actor (public official), is lawfully required to perform his public duties in a NON-DISCRIMINATORY manner. He refused to solemnize a marriage for an interracial couple for a constitutionally impermissible reason.
The JP is not making the argument that Brandeis made in Muller v. Oregon. Brandeis argued that it was constitutionally permissible for the STATE (via its police powers) to enact economic regulations to protect the safety and health of vulnernable persons. The State LEGISLATURE is the branch of the government that enacts statutes and regulations. Justices of the Peace do not enact statutes or regulations. It is NOT constitutionally permissible for a JP (via his statutory authority to officiate and solemnize marriages) to discriminate against applicants for his public services on the basis of their race.
