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Date:         Sun, 6 Sep 1992 01:22:00 EST
From:         JCOCURUL@DREW.BITNET
Subject:      Re: 14th amendment jurisprudence

In article <tfilt317245@drew.edu>, Jamie <PL436000@BROWNVM.BITNET> writes:
>>From:         JCOCURUL@DREW.BITNET
>
>>the fact that this list had to go ad infinitum on the need to let
>>homosexuals have equal rights is nauseating.
>
> It is, a bit. However, I hope you will join me in appreciating
> JasonZ's contribution, which provides some reasonable common
> ground for discussion.
>

I do appreciate the fact this issue is being discussed so throughly
for as one person noted many find homosexually so offensive that they
need to see why banning it would be wrong.  All this talk of aversions
etc. is rather overwhelming as is all the verbiage written about this
issue seeing I just came back and all, but it is educational.  And
when people spend time to research cases and "ordered liberty", it is
very satifying for they spent time to really learn about it.

>>I added the talk of due process because I think gay rights, like
>>abortion rights deals with liberty more so than equal protection.
>
> You are not alone. But, I think you are mistaken.

> [For non-initiates into this jargon, let me explain. At various
> times in its history, the Supreme Court has read the due process
> clause as protecting a substantive list of liberties. For example,
> it was thought to protect the liberty of contract. State and
> federal regulations were struck down by appeal to that clause, not
> on the basis that the regulations had been passed in some "undue"
> way, but on the grounds that their effects were to deprive some
> folks of liberty. While I am in favor of liberty (also motherhood,
> and apple pie), I don't think it's plausible to read the due
> process clause that way. Thus, I am what's called a "procedural
> due process" adherent, rather than a "substantive due process"
> adherent.)
>
you aren't just with the conservatives in this matter, you are with a
small section of them!  Ever since the 1880s (14th came in 1868),
"liberty" and thus due process was seen as more than a procedural
right, but meaning the law had to pass some base minimum of what
"liberty" meant.   "Due process of law" came from language as far back
as the Magna Charta meaning what the law of the nation was -- English
law developed through time so this was not constant.  Without this
interpretation, the Bill of Rights (to the most part, shy a few things)
wouldn't apply to the states.  Griswold v. Connecticut was largely
seen as a "liberty" right (only three justices took the ninth amendment
stand and this idea didn't last that long) with Justice Harlan (a
conservative) explaining it nicely in his dissent of Poe v. Ullman.
This idea of liberty was well shown in a recent eight amendment case
that showed how "cruel and unusual" as applied to states changed in
meaning through time.
    What do you think such liberty rights such as contraception (and
even free speech in NJ) comes from?  The ninth amendment?  Even Chief
Justice Rehnquist (who incidently writes good books) supports due
process liberty interests, just in a much more limited fashion than
some others.  Your not so usual rejection of such well accepted law
surely does warrant a discussion here or by e-mail.

>
> I think that if a state wanted to make all marriage illegal, there
> would be scant constitutional grounds for striking down the law.
> Shocking, but true.

I truly doubt this.  Way back in the 1820s, when reading the federal
due process clause, a justice included many liberty rights not in the
constituion -- your due process analysis seem very suspect.  Even
without it, the "privileges and immunities" clause of the 14th alone
would seem to protect such basic liberties as marriage even if you
scrape the due process clause of its accepted function.  Then there is
the ninth amendment, which protects unenumerated rights.

 But if the state wants to make, say, interracial
> marriage illegal, no dice. Why? Because that would violate equal
> protection. Same for recognizing only heterosexual marriage.

equal protection won't protect my right to free speech; I really see
the ninth amendment as somewhat flimsy in protecting liberty interests,
and without due process, the federal gov't wouldn't have to have the
equal protection of laws! Also, at issue is the act of sodomy itself.
Anti-sodomy laws apply to both sexual preferances and equal protection
wouldn't cover the liberty of the act itself.

>
> If you like slogans, you could think of it this way. The 14th
> requires that liberties and burdens be distributed equally, unless
> some compelling reason for an unequal distribution can be given. But
> it doesn't require of any particular liberties that THEY be
> protected.
>
> Jamie

I truly happy your interpretation isn't followed and hasn't been for a
long if ever completely.


    -Joe
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