Constitutional Issue of the Day: Discrimination

I just read a great article by the American Medical Association on the legal ability to curb smoking in the workplace ... and outside the workplace.  Read it here:  http://bit.ly/b0avVL

I also read an article earlier on Yahoo (sorry, I don't have the link) regarding a new business in Wisconsin whose owner put a sign on the window that said, "No Negro's Allowed" [spelling original.]  The owner noted that, since it's his private business, he should be able to refuse service to anyone and, since he has had unfortunate incidents with colored persons in the past, his sign is simply providing notice before such persons enter the premises of his feelings.  Who cares about Equal Protection these days?  Oh, by the way, the business is a "strip/gentleman's club". 

These issues fall right in line with the current debate on California's Proposition 8 - Marriage between same gender spouses.  Actually, of the three issues, I think the first (anti-smoking) and the third (gay marriage) issues are more analogous than the second (race/color).  The rationale for prohibiting smoking employees, whether they smoke during work or not, is that smoking is a clear health danger.  The Surgeon General has repeatedly warned us about the ill-sided effects of smoking, both to ourselves as well as to others.  The primary reason to an employer, then, is that his health-care premiums will increase with each smoking employee.  Thus, from a cost standpoint, it is obviously better to prohibit smokers.  Another reason, obviously, is that non-smokers tend to get sick less often than their smoking counter-parts.  As the courts have held (see the AMA article above), while there is discrimination, such discrimination does not involve a paramount liberty and as long as there exists a rationale reason for the discrimination, the courts at present will not prohibit such conduct.

Same gender marriage can be coined in a similar rationale.  While I personally do not have any problem with same gender marriages, and frankly believe that such marriage should be lawful, the issue that comes up most often is benefits paid out by pensions and the acquisition of insurance where spousal requirements are strictly enforced.  How does one prove that a spousal relationship exists, especially with regard to same gender couples?

The issues are complex, and will continue to be debated for years to come, I am afraid.  That said, the issue over whether a prejudiced person can prohibit some patrons from entering his private club, if open to the public, is a bit more straight forward.  The Equal Protection Clause, as well as the 14th Amendment are pretty straight forward, I think ... if you want to invite the public into your establishment, you cannot discriminate on the basis of race, gender, etc.  "Gay" bars are required to serve "straight" customers; gentleman's clubs must allow entry to women, men, and all races, religions, etc.

Have a Safe Weekend!