What is Equal Protection? (Posted by Gabe)

Here is the latest question, about Equal Protection:

"The syllabus gives a VERY brief overview and the nutshell book goes into too much detail. I am supposed to be writing a paper on this subject and feel totally unprepared. I am supposed to know the four part analysis of equal protection in relation to homosexuality. Is it correct to assert that homosexuals are not in a suspect class, a quasi-suspect class, a non-suspect class, and that their rights are not fundamental? Any help you could give would be enormously appreciated."

I would state at the outset that I do not feel comfortable answering the question on what it is, or is not, "correct to assert." That is up to you and your studies. I will, though, try to give you some help in the analysis--which can certainly be complex--so that you can figure out what would be the best argument to make.

While the syllabus overview is indeed very brief, it does lay out the four things you need to know to analyze. Those four things are numbered in the syllabus--actions that affect a person, different benefits or burdens, impermissible criteria or fundamental right, and the difference between purposeful and incidental discrimination.

Starting with the basics, constitutional law is about the tests designed to determine whether the government action is permissible or not. There are three, primarily:

--Strict Scrutiny. If the governmental action falls under this test, the burden is on the government to prove that their actions are the least restrictive means to accomplish a compelling state interest. If this test is used, the government action is almost always struck down, because if the private party can show that there is a better way for the government to accomplish its goal, the government loses.

--Intermediate Scrutiny. This one can be a bit fuzzy, but at its core, it means that the government must prove that their actions are substantially related to an important state interest.

--Rational Basis. Under this test, the burden of proof is really on the challenging party, and they must show that the government action is not rationally related to a legitimate state interest. Under this test, the governmental action is almost always upheld--unless it is completely ludicrous.

The key to Equal Protection is knowing which test to use, and the four step approach is designed to help you find exactly that. Take some time to think about it from a logical standpoint, and I think these four criteria will fall into place. Let's run through them in order:

1. Whether the government has taken any action that affects the person. It stands to reason that if the governmental action does not affect people, there can be no Equal Protection violation, because only people need to be equally protected, so to speak. If people are not affected by the law, none of the tests apply--the government action is not a violation of the EP clause.

2. Whether the government action classifies individuals for different legal benefits or
burdens. If the government action classifies everyone exactly the same, everyone is equally protected. Does that make sense? Equal protection is designed to give everyone the same treatment, so if the law does that it does not violate this clause. If the law gives everyone the same treatment, it could potentially be challenged under some other Constitutional provision, but no test is needed for Equal Protection--the action is valid.

3. Whether the government action discriminates on the basis of impermissible criteria or in
violation of a fundamental right. This is where it gets tough, and we'll come back to this one in a minute.

4. Whether the government has discriminated purposefully or incidentally. An example would be helpful here. Say XYZ City has a law that says, "Anyone making less than $20,000 a year must live in ABC Neighborhood." Now, I'm sure you can see that this purposefully discriminates on the basis of poverty--a non-suspect class, as we will discuss. Non-suspect classes give rise to the rational basis test, so a challenger would want to find a better argument. Say that they bring forward statistics that show that 85% of the families affected by this ordinance are African American. Now they are arguing that the ordinance discriminates on the basis of race--and they are right. But the discrimination is incidental; it's a by-product of the ordinance, not a purpose of it. Therefore, despite the incidental discrimination, the rational basis test would still apply.

OK, stop and take a deep breath. If something hasn't made sense so far, go back and re-read it, compare it to your syllabus, and ask questions if you can't figure out what I mean. Once your brain stops doing somersaults, let's move on.

The real "meat" of Equal Protection jurisprudence comes from the delineations of what sort of discrimination is OK in what circumstances. Starting at the foundation level, I'm sure you can already see how the fact that a law discriminates on some basis does not make it an automatic violation of EP. As your syllabus notes, every criminal law is a discrimination against something--if you are convicted of murder, the law is discriminating against you for killing someone. It doesn't take much reasoning to decide that there is no problem with that; without it law would be meaningless.

So when is a discrimination a violation of the Equal Protection Clause? When you are asking that question, in step 3 of the four-part test, I would encourage you to start with a two part question. Your syllabus mentions it, but doesn't clearly explain it, so I'm going to try.

The two part question is simply this: 1) Does the discrimination interfere with the exercise of a fundamental right? and 2) Does the discrimination use impermissible criteria? Let's take each of these in turn.

First, fundamental rights. You will be happy to know that you have already learned about this to a large degree in the last lesson--substantive due process also uses this fundamental rights approach. The only difference is that due process regards violations against an individual while equal protection regards violations against a class of people. With that one distinction in mind, if you understand substantive due process, you understand the fundamental rights prong of equal protection.

Second, impermissible criteria. The Supreme Court has laid out three different types of criteria, which as you know, are suspect, quasi-suspect, and non-suspect. The suspect category is the highest, and gives rise to the strict scrutiny test. Race is really the only time that the court will use this analysis.

While they recognized that race is the "worst" form of discrimination, the Court has also said that there are other categories of discrimination that are "bad." In these quasi-suspect categories, the government has to satisfy the higher burden of the intermediat scrutiny test.

Finally, there are those categories that are benign. The government can't be arbitrary or ludicrous, so it must still meet the rational basis test, but that is rather easy.

So where is all this law in the Constitution? It is certainly not written in there, and the courts have had to struggle with where to draw the line. It has been a hard task for them, and the result is the confusing system that I have attempted to lay out for you here. I hope that this overview gives you a structure that you can use to understand your Nutshell text better.

Good grief, I have written a thesis. Questions are more than welcome, via comment or e-mail.

A Conciliation Resource. (Posted by Gabe)

Hi Guys--

When we were talking about secular books for Christian Conciliation, I recommended "Beyond Reason," an excellent book about using emotions as you negotiate.

I just discovered that they have a website with further resources, that I would recommend you check out if you have the time.

www.beyond-reason.net

Enjoy!

A Different ConLaw Perspective. (Posted by Gabe)

Hi Friends--

As a part of my work with Remember, I have to monitor news on the persecuted church worldwide. Today I saw this article, and thought you might be interested in seeing a Constitutional perspective from an entirely different cultural view--the country of Egypt.

It is certainly a very different constitution than ours! Click here to read the story.

ConLaw: What's to Know? (Posted by Gabe)

Hi Friends--

Got a question from one of you last night; here it is, with my thoughts. "I am trying to get through the reading for constitutional law and am having a really hard time with the nutshell book. Will I really need to know what's in that book? Is there anything I should be focusing on while reading to help me comprehend and enjoy the book more?"

Great question.

The nutshell book just like its name would imply--hard to chew and harder to digest. (If you have ever tried to eat even a peanut shell, you know what I mean. And I would compare this book to more of a walnut, to be honest.)

ConLaw in general is a tough subject to learn in a course like this, because it is a constant war between three sparring factions. Broad legal theories, minute points, and personal opinions are constantly duking it out. Your task is to separate the three and talk knowledgeably on each of them at the right time.

Your nutshell book is going to help you learn some of those minute points; that is what it is designed for. Keeping that in mind as you read it should help you--it is important information, but only important in that context. You will learn the broad rules as you read the Constitution and your other study materials, and you will learn personal opinion as you read the justice's opinions, but when it comes to those minute points, the Nutshell is the way to go.

I certainly hope that this helps you put it all in perspective.

Oh, I think the time is about right to go ahead and answer my own question. I asked you to tell me what the Constitutional provision for Roe v. Wade was, and you came up with some good answers. The real answer, in the final analysis, though, is that no one knows. Some have argued the due process clause of the 14th Amendment, some have argued the 9th Amendment, but even Justice Blackmun, who wrote the opinion, couldn't say what his rationale was. (I'll try to get you the exact quote sometime soon.)

The Court concluded that there were enough "emanations" from the "penumbra" of these constitutional provisions to justify their ruling. To translate the gobbledygook, they claimed to feel the vibes from the shadows of the Constitution, even though they couldn't point to where those vibes came from.

So, take a minute and think about this. Where did the justices go wrong? Was it in broad legal principle, minute detail, or their personal opinions?

Leave a comment and tell me what you think.

Secular Book Recommendation for Christian Conciliation Course (Posted by Jenny)

Hi y'all-

The book I used for my Book Review / Comparison paper was The Eight Essential Steps to Conflict Resolution by Dudley Weeks, MD. I found this book to be both sufficiently secular and a fascinating read. I would definitely recommend it to you for consideration - if you have yet to select a secular book.

An important note on secular conciliation books: You will want to exercise caution and discernment as you make your selection. I distinctly remember being shocked at what was on the secular conciliation shelf at Barnes & Noble. Some books are only fit for kindling or the recycle bin. And as I am sure you know, in your quest to write an excellent book review paper, Professor Gundlach would not want you reading anything defiling.

All that said, happy reading! God used the Christian Conciliation course to teach me many things. So grab your favorite beverage and get ready to be challenged!

Many Blessings,

Jenny

Course Intro: Constitutional Law. (Posted by Gabe)

I saved the best for last, friends. While there might be more valuable courses, and while there might be less frustrating courses (for those of us that are more ideological!), there is no course in paralegal--or in JD, for that matter--more fun than Constitutional law, in my not-so-humble opinion.

The first thing to remember when it comes to this course is that you are not trying to argue what you believe; you are trying to learn the overarching principles of law as they have been articulated by the Supreme Court. I would hasten to say that learning these principles, in some cases, will be for the purpose of enabling you to argue with them effectively! So learn with a mind on figuring out what they are saying; once you understand that you will be ready to seek the truth.

This course is designed to give you a very broad overview of the subject, starting with the overarching principles that led to the constitution in the first place. Those of you that really want to delve into the Supreme Court precedent, you have been given a great starting point in the Nutshell textbook, but the cases that form the Intro to ConLaw outline should be all of the actual precedent that you need to do well in this course.

I hope you enjoy this course as much as I did. Before you dig into the meat, though, I'd like to test your knowledge. We all know about the case of Roe v. Wade, but who can tell me what Constitutional provision it is based on?

Please e-mail any questions you may have on any of your Third Quarter Courses.

What's in a Lesson Reflection Paper? (Posted by Gabe)

Hi guys--

I'm writing in response to a question from one of you. Here it is: "I had a question about the lesson reflection papers that I am required to write every week. The syllabus gives barely any guidelines on how these are supposed to be written. Should I be summarizing the chapter or should I be only giving my opinion on the reading? Any insights you could share would be much appreciated."

Part of any real learning process is application. Learning--especially for a practical course like this one-- is not just in reading a book, even a great book like "The Peacemaker." The purpose of the lesson reflection paper is really to help you go through that application process. You should use these papers to independently think through the lesson's topics in terms of your own life or your own Biblical analysis.

You can approach these papers from a multitude of angles. You can write them as a testimonies, how you did--or should have--applied this truth in your own life. You can write them as an analysis of situations you saw. You can write about Biblical situations, or Biblical analysis using your own Scripture study.

I would encourage you to take these papers and focus on taking the theory and personalizing it for real life.

Feel free to leave comments and questions if you have further thoughts!

Course Intro: Christian Conciliation. (Posted by Gabe)

I can't think of a more important course for any paralegal student--or any Christian--than that of Christian Conciliation. You won't learn substantive law in this course, but substantive law is worthless if you cannot use it to solve disputes. Sometimes those disputes are litigation--but Christian conciliation allows believers to solve disputes while both maintaining their witness and encouraging their brothers and sisters in Christ.

This course is designed to give you a Biblical basis for your thinking on dispute resolution, and then to allow you to think critically through secular theories and practical situations. I would encourage you to think through the theory you are given in terms of your own life. I would imagine that each of you is going through situations that could be classified as "disputes," be they large or small. If you can apply these Biblical principles in your own life, you will truly be equipped to help others in your paralegal careers and in your personal lives.

If you have not read Ken Sande's book, you are in for a treat in this course. If you have--the second time is even better. Mr. Sande and his Peacemaker Ministries have blessed thousands of Christians both directly and indirectly, and his teaching is both practical and Biblical. Use your course notebook as a chance to learn this truth...and get credit for it!

Part of the course, though, as you know, is reading a secular book on these topics and comparing it to the Biblical principles that form the core of the course. One of you has asked me what I would recommend, and a couple books came immediately to mind. These are only suggestions; you are welcome to come up with your own! The alternative dispute resolution course for the OBCL JD course had two excellent textbooks from the secular standpoint:

--"Getting to Yes" by Roger Fisher and William Ury. This is a small book, easy read, with some rather groundbreaking negotiation principles.

--"Effective Legal Negotiation and Settlement" by Charles Craver. This book in an exhaustive negotiation and ADR text--not an easy read, but chock full of insight into all facets of negotiations.

Another secular negotiation book that I can recommend is called "Beyond Reason," by Roger Fisher and Daniel Shapiro. It approaches the entire process from the aspect of emotions; a very interesting read.

But I don't want to do all of the recommending, as I am sure there are dozens of excellent books that would fit the bill that I have not read. I would rather open the floor for you to discuss books you are thinking about using. That's what the comment section is for!

God bless.