Constitution vs. legislature
Jeff Ackerman’s editorial, “Arizona lawmakers must spend too much time in the sun,” expresses inaccurate constitutional conclusions with condescending overtones.
Despite his words to the contrary, discrimination by privately owned businesses is not necessarily unconstitutional. The Constitution limits government action, not private. There isn’t one clause in the Constitution that prevents a person from doing anything he wishes, unless that person is a government official.
Today’s Neo-Nazis can congregate in a city park and spew their venom of racial hatred with full immunity from penalty, due to the First Amendment. However, a basketball coach who complains of the officiating in his last game can be fined $25,000 by the NBA.
The constitutional protection from discrimination comes from the Fourteenth Amendment’s equal protection clause. But this provision prohibits government from discriminating, not employers, businesses or individuals.
Our protection in the private sector comes from laws passed by legislative bodies. Congress passed the Civil Rights Act of 1964 to prohibit discrimination by businesses, based on protected classes, such as race and sex. One classification that has not been singled out for federal protection: sexual orientation.
State legislatures also prohibit discrimination in the workplace, while creating additional protected classes. Oregon, along with 20 other states, does recognize sexual orientation as a protected class. But this is not a constitutional right, it’s a legislated right subject to the whim of the majority. We can give it or take it away. As it now stands, a majority of the states and the federal government choose not to give the right and they don’t all have more than 100 degree temperatures as an excuse.
My point is not to say gays don’t deserve this protection, but to convey the correct context in which this right exists, without the mockery conveyed by Mr. Ackerman.