Thomas wrote:Even if there is a denial of rights, it doesn't rise to the same level as your "able-bodied-only" law would. I remember a waiver I had to sign as a condition for getting my Green Card. It said I couldn't receive any welfare payments during my first X years in the US, where X was either 5 or 10 -- I don't remember which. Obviously, then, the US government can deny me services based on my nationality. Are you saying this was illegal of the INS to do? Or is this one of those discrimination cases where the "equal protection component" of the Fifh Amendment's due process clause yields a different outcome than the equal protection clause of the 14th would have? If not, I would argue that if the government can discriminate based on nationality, it can certainly discriminate based on language.
The government can discriminate against you because you're not a citizen, not because you're of German descent or because you speak German. Indeed, any law that prohibited a German-speaking immigrant from receiving welfare benefits, but which allowed an English-speaking immigrant to receive those benefits, would, I think, be constitutionally suspect.
Thomas wrote:Are you saying language-based categorization are a quasi suspect class in a similar way as race and gender? I doubt it, based on what little I know about American law. In reading the recent gay marriage cases before State Supreme courts, I have picked up on some of the relevant tests. As far as I can make out, foreign language speakers seem to fail all the tests by which courts usually determine which classes are suspect or quasi-suspect.
The first test I've seen of whether something is a quasi-suspect-class is whether there is a long-standing history of repression. I don't think there is such a history for Americans who can't speak English. (Indeed one might argue that one of them is currently your president.) That's a stark contrast to he case of gays and some groups of handicapped people.
The second test I've seen courts apply in the gay marriage cases is whether the behavior the state discriminates against can be changed. Not speaking English can be changed, unlike most physical handicaps and homosexuality. In the short term, people can have a relative translate for them, or they can hire a translator. In the long term, they can learn English. So, not speaking English is not immutable.
The third test I noticed courts apply in gay marriage cases is whether the people discriminated against lack political power. Immigrants do have political power, as the demonstrations this spring have shown. Going further back in history, immigrants have proven their power by getting repealed many of the "English only" laws that states had enacted in the 1920s. They did get a little help from the Supreme Court -- what was the first Amendment case about teaching foreign languages again? [
that was Meyer v. Nebraska: jfc]-- but for the most part these laws got repealed through the political process.
Against this background, I think you probably couldn't persuade the Supreme Court to categorize non-speakers of English as a quasi-suspect class. You probably couldn't persuade them that rational basis review is not the appropriate level of scrutiny. And considering how leniently rational basis review usually plays out, I also doubt the court would find the currently proposed "English only" bills so insane they wouldn't withstand it.
Unfortunately, I don't have the time to do the research necessary to respond to this fully. I'll just say that, if a law singling out non-English speakers was designed primarily to discriminate against a particular ethnic group (in this case, quite clearly it is Spanish-speaking people), then the law would be unconstitutional even if discrimination against non-English-speaking people were otherwise permissible.
