RANDOM MUSINGS

October 3, 2008

The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall… deny to any person within its jurisdiction the equal protection of the laws."  The exact meaning and import of this has been a subject of some debate and court precedence over the decades.  Some have argued that it is not necessary to show intentional discrimination but only unequal outcome of laws for them to be unconstitutional.  Supreme court decisions from Plessy and Brown seemed to leave this question open, but in more recent times the decision in Village of Arlington Heights vs Metropolitan Housing Development Corp. (1977) set a precedent that is still adhered to today.   Justice Lewis Powell, writing for the Court, stated, "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Disparate impact merely has an evidentiary value; absent a "stark" pattern, "impact is not determinative."

So now we come to the recent collection of ordinances passed by the Myrtle Beach City Council.  While they may look like a duck and quack like a duck, it is not sufficient to show a disparate impact on bikers to consider them a violation of the 14^th amendment.  We must have intent.  Fortunately, we need look no further than the recent letter released by Myrtle Beach officials to clarify their position.  In this letter, it is stated “Our desire is to bring to a close the two humongous motorcycle-related rallies that overwhelmed us in May for the last 15 years.”  This is a clear and unambiguous statement that the intent of the ordinances is to target bikers and others who attend the rallies in order to end them.  That is, the ordinances were not intended to address instances of violations of law that were not previously covered, but rather to “close” the rallies.  By their own definition, they are targeted at a specific group of people exercising their constitutional right to lawful assembly.  Where does that right exist?  In the 1^st amendment to the US Constitution which states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."  There doesn’t seem to be an exemption in there for abridging the right of assembly if the mayor thinks there are not enough toilets to handle the crowd.

What about that pesky constitution anyway?  Can the Mayor and City Council of Myrtle Beach blow it off at whim?  Hardly.  Article VI of the constitution states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  The plain language of the U.S. Constitution, coupled with the plain language of the Myrtle Beach officials on their intent by these ordinances would seem to indicate that they have violated the civil rights of the Rally attendees.

Do Myrtle Beach residents really want to see their tax monies spent on lawyers to defend untenable positions in court?  We seem to be on the verge of a significant contraction in the economy, and one would think Myrtle Beach has better ways to spend their limited resources than turning them over to parasitic lawyers.  It is easy for the Mayor and the City Council to write checks with other people’s money, but how easy will it be when they come knocking on your door for another special assessment?