Protected Class (Progressive for Taking Property for Public Use)

This is a response to a post in Missouri Group Against Smoking Pollution

The following comment was submitted by Marshall P. Keith on 2011/01/30 at 2:15 pm. It referenced a Supreme Court case which I’ve added for completeness. Mr. Billy Williams, Executive Director of GASP of Texas, who is very knowledgeable on relevant case law, was good enough to provide the rebuttal which follows it below.

I have little doubt at some point that the entire concept of “protected class” will be ruled unconstitutional. It violates both the “taking clause” of the fifth amendment. Using the ADA argument implies that the so called member of the “protected class” has more rights then the business owner who chooses what clientele they want to cater to.

Brian Doherty of reason put it best.

Laws are valuable human institutions inasmuch as they provide us with predictable regularity, delimit in a clear and understandable way the boundaries of permissible behavior, and treat everyone under them as individuals with equal rights and obligations—not special classes to whom all others, whether or not they would choose to be in a special relationship with them, owe special treatment. A nation with laws like the ADA doesn’t really respect anyone’s right to free association (or lack of association) or right to control one’s own property short of causing direct, identifiable harm to others.

Predictability, simplicity, equality—all these virtues of a useful, just legal system—are absent from the ADA and its enforcement. The ADA demands special treatment, up to a certain loosely defined point (“reasonable accommodations” that are not an “undue burden”), of a special class of loosely defined people.

In a free society people are allowed to take risks and businesses are free to cater to those risks. There is long standing legal doctrine of assumption of risk is also known as volenti non fit injuria.

Using Mogasp’s reasoning a quadriplegic not only has a right to enter a boxing ring but must also be protected from the blows they might receive in the ring.

The same asthmatics have the right to go to that indoor tractor pull or monster truck rally but the participants can not start the engines.

Oriental Restaurants would be barred from using peanut oil as the fumes could cause an extreme allergic reaction to the extremely sensitive.

The fact is that in a free society we must as individuals decide what risks we are willing to take and don’t need a Nanny to make those decisions for us. Nor do we need to hide behind the disabled to create laws banning activities some may find distasteful.

The 14th amendment has an equal protection clause,

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Like the pigs In George Orwell’s Animal Farm you would deface the constitution and the equal protection clause in the 14th amendment to read some are more equal then others. Like the pigs did by altering “ALL ANIMALS ARE EQUAL” to


Your version of the equal protection clause now reads.

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws unless you are a member of a protected class as some people are more equal then others.”

About Marshall Keith

Broadcast Engineer Scuba Diver Photographer Fisherman Hunter Libertarian
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5 Responses to Protected Class (Progressive for Taking Property for Public Use)

  1. mogasp says:

    The arguments above would be laughable if they were meant in jest, but they’re not. The Americans with Disabilities Act is intended to provide those individuals covered by the law with a more level playing field, not somehow elevate them over the rest of us. Nothing more than that. And there are no sinister motivations. Let’s hope you aren’t someday afflicted by such a disability and have to try and live with it. Even with the ADA it’s not an easy situation, and there are still plenty of obstacles for the physically disabled because the ADA is not implemented and enforced universally. E.g. curb cuts are not provided wherever needed or, to economize, a single angled one will be provided at a given location instead of the two needed.
    For those with severe breathing disabilities it’s harder because their disability is not evident, and they can more easily be written off or ignored.

    • Marshall says:

      The road to hell is paved with good intentions. We live in the real world and there is no such thing as a level playing field. Using the ADA does indeed elevate the rights of the “protected class” over that of the property owner. It denies the owner the right to use a legal product on their own property or to allow their guests to do the same. Where is the level playing field for the smoker or the property owner? The whole level “playing field” argument is yet another progressive term for theft of private property through regulation.

      • CoachMcQuirk says:

        Well said! There clearly should at least be some establishments catering to the smoking/liberty-minded crowd, while others should be totally free to cater to the non-smoker/anti-smoking crowd that can’t stand smoking. What’s wrong with allowing both types of establishments to exist?

  2. harleyrider1978 says:

    Class distinction and class protection are as unamerican as any case can get.
    The ADA law deserves to be ruled unconstitutional and I am pretty sure it finds its supposed constitutional legal status in the interstate commerce clause definition thats been stretched so far as to not even resemble what it was only for to begin with.To stop states from requiring tolls and excise taxes on goods crossing state lines!

  3. CoachMcQuirk says:

    Ah-ha Marty Pion, do you ever have any shame of selfishly demanding that all businesses permitting smoking must ban an activity you don’t like, and selfishly want to eliminate from the VERY FEW that allow it against the will of those business owners? That is why many of us(not just Bill Hannegan) advocate for smoking laws that are sensible, aren’t against banning it in government buildings and on public transit vehicles, clear disclosure of smoking policy on exterior entrances into privately-owned business, and having any business that chooses to be a smoking establishment restrict entry into that business(or into a walled-off room designed for permitting smoking with its own ventilation system) to only adults, and for disclosure of indoor smoking policies on job employment applications.

    But ah yes, the fact that any business may permit smoking is too much for your selfish ego to handle, isn’t it? 🙂 Never mind time and time again, the enactment of no-smoking policies has failed to bring in the huge influx of anti-smoking customers that professional anti-smoking lobby groups promise will show up to businesses catering to smokers before a ban passes, resulting in that business having no choice but to look the other way on a ban just to stay in business(such as this site showing the high number of Ohio businesses that’ve chosen to do this):

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