Discrimination.
Publié le 10/05/2013
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Throughout United States history many other groups have suffered racial or religious discrimination.
Since Europeans first came to America, Native Americans havebeen forcibly deprived of their lands and denied civil rights.
Congress enacted the Indian Civil Rights Act in 1968, and the federal courts have entertained a number ofsuits designed to restore to Native American tribes ancestral lands and hunting and fishing rights.
Many religious groups, including Roman Catholics, Jews, and others,have been discriminated against as well.
Discrimination has also taken other forms.
For many years urban voters were denied equal representation in Congress and state legislatures; the elderly have beenfaced with discrimination in employment and housing, despite federal and state laws designed to prevent such practices; former prisoners and mental patients havesuffered legal disabilities after their terms of confinement ended; and some aliens have been denied equal employment opportunities.
People with physical disabilitieshave endured discrimination in employment and access to public facilities and transportation; the Americans with Disabilities Act of 1990 addressed these problems onthe national level.
A widespread form of discrimination exists against homosexuals, who historically have endured prejudice because of social and sexual taboos.
Few state or local lawsexist to protect the rights of lesbians and gay men against discrimination.
In 1986 the U.S.
Supreme Court ruled that the Constitution does not protect privatehomosexual relations among consenting adults.
This decision led to aggressive action by the gay community to counteract prejudice and to lobby for legal protections.In response, conservative groups in some states sought to ban local antidiscrimination laws that protected gay people.
In 1996 the U.S.
Supreme Court ruled thatstates cannot make it more difficult for homosexuals than others to seek antidiscrimination laws from local and state legislatures.
The Court overturned its 1986 ruling ina landmark decision in 2003.
In Lawrence v.
Texas the Court nullified laws in 13 states that criminalized homosexual behavior, finding that such laws were demeaning and violated the right to privacy.
VI CONSTITUTIONAL RULES
The 14th Amendment to the U.S.
Constitution bars states from denying any person within their borders the “equal protection of the laws.” Although this provision doesnot apply to the federal government, the Supreme Court ruled in Bolling v.
Sharpe (1954) that the Fifth Amendment’s due process clause binds the federal government to the same rule.
Since the mid-20th century the Court has developed an extensive body of law dealing with issues of discrimination and equality.
Though the cases are numerous andthe rules complex, in essence the Court has enunciated three tiers of protection, depending on who is being discriminated against and for what reason.
These threestandards are (1) strict scrutiny, (2) intermediate scrutiny, and (3) rational basis.
If a law or governmental practice classifies a person on the basis of race, ethnicity, national origin, or religion, the courts must apply “strict scrutiny” to determinewhether the law or governmental practice serves a “compelling government interest” and is necessary to fulfill that interest.
Almost all laws that classify individuals onsuch bases have been struck down.
Likewise, if a law intrudes on a fundamental right of one person or group more than on that of another group, it is subject to thesame strict scrutiny.
For example, in a 1942 case, the Court struck down a law that required compulsory sterilization for one class of felons and not for another, holdingthat the law discriminated against one group by interfering with the fundamental right of procreation.
The Court has also ruled that affirmative action programs aresubject to strict scrutiny and that they must be narrowly tailored to serve a compelling government interest.
The Court has applied a somewhat less strict standard of review, called intermediate scrutiny, to certain forms of discrimination—notably, classifications on the groundsof sex and illegitimacy (being born out of wedlock).
To prevail the government must show that the classification will serve an important interest and that it issubstantially related to achieving that interest.
The least onerous standard, that of rational basis, applies to all other forms of discrimination, including, for example, economic and tax discriminations.
To justify suchdiscriminations, the government need show only that the classification is rationally related to achieving a legitimate government purpose.
Other classifications subject torational basis scrutiny include those based on age, mental or physical disability, and sexual orientation.
VII DISCRIMINATION OUTSIDE THE UNITED STATES
Most nations practice discrimination against foreigners and disfavored minorities within their borders.
It may be religious, such as policies that disfavor Roman Catholics,Jews, Muslims, Hindus, and others; racial, as in the apartheid policy that was enforced in South Africa from 1948 to 1992; or sex discrimination, as in many countrieswhere women have few rights.
The laws of each country should be the means of combating discrimination, but often these laws encourage discriminatory practices.
International efforts to combat discrimination were minimal until the passage of the United Nations (UN) Charter in 1945 ( see United Nations).
One of the charter's purposes is to encourage “respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” A broad statement ofhuman rights is contained in the Universal Declaration of Human Rights, passed by the UN General Assembly in 1948, but it does not have a binding effect on memberstates.
Later the General Assembly passed the Covenant on Civil and Political Rights (which went into effect in 1976), as well as specific covenants on the Prevention andPunishment of Genocide and on the Elimination of All Forms of Racial Discrimination.
Although a majority of nations have signed these covenants, the United States hasnot yet done so.
In 1986 the U.S.
Senate finally endorsed the UN ban on genocide and more recently the Senate ratified, with several reservations, the Covenant onCivil and Political Rights.
The major obstacle to international protection of human rights is that most nations will not accept any interference with their internal affairs, including questions ofdiscrimination against their own citizens.
To a modest degree these difficulties have been overcome through regional bodies such as the European Convention on HumanRights and the Inter-American Commission on Human Rights.
The administration of U.S.
president Jimmy Carter in the late 1970s introduced human rights as a principalelement of foreign policy.
This initiative was often ineffectual, but did lead to some practical gains as well as increased international awareness of the importance ofsecuring human rights for all.
During most of the 1980s, the conservative administration of President Ronald W.
Reagan showed less inclination to include the humanrights issue in foreign policy pursuits.
In 1982 the Constitution of Canada was amended to incorporate the Canadian Charter of Rights and Freedoms.
The charter expressly states that all Canadians areentitled to equal protection under the law and may not be discriminated against because of race, national or ethnic origin, color, religion, sex, age, or mental or physicaldisability.
The Supreme Court of Canada has extended the charter’s stated equality rights to prohibit discrimination against pregnant women in unemployment benefits,firing of employees based on sexual orientation, and employment discrimination based on perceived rather than actual disability.
See also African American History; Civil Rights and Civil Liberties; Women's Rights.
Contributed By:Norman DorsenJethro K.
LiebermanMicrosoft ® Encarta ® 2009. © 1993-2008 Microsoft Corporation.
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