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.”