Ask HN: Why Aren't Political Views/Affiliations a Protected Class? - alphanumeric0
======
wahern
The fundamental legal basis for protected classes derives from the text and
history of particular clauses in the constitution. For example, racial
protections obviously derive from the 13th, 14th, and 15th Amendments.
Protections for sex derive most directly from the 19th Amendment giving women
the right to vote, which has been deemed to have reshaped other clauses to put
protections against sex discrimination nearly on par with those against racial
discrimination. Crucially, these clauses themselves identify particular
classes like race and sex, and the history of the passage of the associated
amendments provides insight into the contours of those classifications.

Relatively late in the legal evolution of civil rights jurisprudence the
Commerce Clause was interpreted to not only expand pre-existing anti-
discrimination powers, but to provide an independent source of power to ban
discrimination. This is why Congress has the power to regulate discrimination
against the disabled, for example. Nonetheless, the further away from the
plain text and history of the Constitution, the more tenuous Congressional
powers become. So, yes, Federal laws against disability and age discrimination
have the least constitutional support and are also commonly construed the most
narrowly.

Just as important, all of those textual sources grant affirmative powers to
the Congress. For example, section 5 of the 14th Amendment says, "The Congress
shall have power to enforce, by appropriate legislation, the provisions of
this article." The 19th Amendment says, "Congress shall have power to enforce
this article by appropriate legislation."

Remember, the Federal government only has enumerated powers. Nowhere is
political affiliation directly discussed in the Constitution in a context that
would permit it to distinguish political affiliation as a cognizable type of
class, and certainly not in a context granting Congress affirmative powers to
differentiate based on such class. Political affiliation would best fit with
the Free Speech clause of the First Amendment, which the Federal government
has powers to enforce through the so-called incorporation doctrine of the 14th
Amendment. But Free Speech jurisprudence is concerned with content of speech,
not classes of people, unless we're discussing journalists as a class.

Freedom of Association doesn't fit because, similar to Freedom of Speech, it
doesn't imply the power to differentiate by association, per se; that is, it
doesn't imply the power to recognize group A and group B and give group A
special protections. Quite the contrary, it implies the _inability_ to
differentiate among them.

The Commerce Clause doesn't work. As broad as the Commerce Clause has been
interpreted, political affiliation is perhaps one of the last remaining areas
that isn't construed to directly implicate commerce.

Basically, the reason political affiliation isn't normally a cognizable class
is because there's no direct nor even indirect source of authority that grants
the federal government the power to regulate in such a manner. Plus, there's a
whole host of reasons why permitting the government to differentiate people
based on political affiliation would harm more fundamental prohibitions
against discrimination.

EDIT: Regarding the question of gay marriage, note that Kennedy's opinion
doesn't make homosexuals a protected class. Rather, the basis of that opinion
is that the government lacks any power to differentiate between homosexuals
and heterosexuals when granting marriage licenses. That said, there's a
liberal vein of jurisprudence that construes LGBTQ discrimination as a form of
sex discrimination.

------
altairiumblue
Why would they be?

I'm not being smart - this is the genuine way to approach the problem. At some
point you started with no protected classes and if there was a reason that was
_considered_ good enough by enough people, then the list was extended. So if a
group in society/legislative branch thinks there's a reason to make the
change, the onus is on them to justify it and convince enough people to join
that opinion.

So if you want a genuine discussion on the topic, you should start with a
strong argument about why these views _should_ be a protected class.

------
cimmanom
Most protected classes are attributes that a person has no control over - age,
race, sex. Political views do not fall in that category.

The big exception to that that I can think of is religion. One could debate
why that’s a protected class and whether it should be. But in the US freedom
of religion is part of our founding myth and enshrined in our constitution,
which probably has something to do with it.

------
sadris
It is quite the question. Especially given that political ideology has a
higher heritability than other protected classes: homosexuality and religion.

------
pizza
Part of being part of a protected class is that you are protected from
retaliation for complaining about being discriminated against. Not sure that
political views would fit here.

~~~
luckylion
Why not? It works with religion, and religion is as changeable as political
views. Yet we somehow pretend as if political views are a free choice, made by
an informed citizen.

------
Tomte
Can we please leave generic political discussions off HN?

------
O_H_E
I don't understand the question

------
java_script
All of them?

~~~
luckylion
I'd say yes, but for practical reasons those that the (overwhelming) majority
holds probably don't need protection.

