Our old friend Jonathan Dowty, aka the Christian Fighter Pilot, has a blog post entitled “Mikey Weinstein’s Lawyer Botches Complaint.” In it, he very smugly criticizes Robert Eye, an attorney working with the Military Religious Freedom Foundation, for allegedly having cited the wrong part of the Constitution. As I will show, it is Dowty who has botched things and given us a perfect demonstration of the Dunning-Kruger effect.
Some background first. The situation involves the navy’s Recruit Training Command near Chicago, where the commanding officer has forbid civilian volunteers from leading services for religious minorities on the base. The Navy doesn’t have chaplains for every possible religion, so they typically allow civilian leaders from smaller minority religions to come on base at specific times to lead services for adherents of those religions. But Capt. Douglas Pfeifle apparently refuses to do so. MRFF had Robert Eye send a letter to Pfeifle informing him that his actions are unconstitutional. Dowty quotes this from that letter:
There is a constitutional question whether denying similarly situated individuals under your command substantially similar rights to exercise religious freedoms violates the right to equal protection under the Fifth Amendment of the Constitution of the United States.
And smugly but ignorantly replies:
You don’t even have to crack out your high school American government books to see the error from Weinstein’s presumably high-brow lawyer. The Fifth Amendment contains important protections of citizens’ rights, but it has nothing to do with “equal protection.” That’s the Fourteenth Amendment.
The writer is Mr. Robert Eye of Kauffman-Eye, who has previously worked for Weinstein in the ill-fated Chalker and Hall atheist lawsuits. Eye’s other claim to fame is defending George Tiller’s abortionist associate, Dr. Kris Neuhaus. It seems Mr. Eye could use either a little constitutional law refresher or an assistant to edit his missives. Maybe Chris Rodda could help.
It would do little good to break out high school government textbook here, but it would do Dowty some good to consult with a constitutional law textbook or even just do a Google search on the matter. While it’s true that the 5th Amendment does not contain the phrase “equal protection” while the 14th Amendment does, the courts have long interpreted the due process clause of the 5th Amendment as requiring equal protection, for the obvious reason that the process that is due to all Americans must be equal for those in similarly situated groups.
In U.S. v. Laurent (2012), for instance, the Supreme Court said that, “[T]he reach of the equal protection guarantee of the Fifth Amendment is coextensive with that of the Fourteenth.” In Weinberger v. Wiesenfeld (1976), the court said, “This Court’s approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.” And in the Windsor case in which the court struck down Section 3 of DOMA, the court said, “The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.” The difference here is that the 14th Amendment applies to state actions, while the 5th applies to federal actions.This all goes back to a case called Boiling v Sharpe, which involved segregation in the Washington, DC schools. It was decided on the same day as the better known Brown v Board of Education, but Brown involved state action, while Washington, DC is under federal control. The court said:
We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process…
Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect. As long ago as 1896, this Court declared the principle “that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race.” And in Buchanan v. Warley, the Court held that a statute which limited the right of a property owner to convey his property to a person of another race was, as an unreasonable discrimination, a denial of due process of law…
In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution.
So a refusal to apply the law equally is a violation of the 14th Amendment when done by the states and a violation of the 5th Amendment when done by the federal government, under the due process clause.
As I said, this is an excellent example of the Dunning-Kruger effect. Dowty has no training in or knowledge of constitutional law, but he thinks he understands it so he spouts off about it and then falls flat on his face. Mr. Eye’s reference to the 5th Amendment was, in fact, perfectly accurate. If you’re going to open your mouth on a subject you know nothing about, you’re going to end up looking foolish much of the time — especially when you’re trying to attack someone who actually is an expert on the subject you’re bloviating about.
A brave leap in the dark by Mr. Dowty, followed by a resounding thud as he hits the ground.