Newsgroups: bit.listserv.politics
Date:         Sat, 5 Sep 1992 15:15:58 EDT
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Re: 14th amendment jurisprudence

>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.

>A tidbit: about 7 years
>ago a case supporting the right to be a homosexual reached the Supreme
>Court -- Bowers v. Hardwick -- and it lost by a vote!  Why?  Because
>Justice Powell didn't like Blackmun's reasoning (that is it was too
>broad on privacy), but Powell later admitted he made a mistake and
>should of voted to uphold the right!

I'll confirm that. I read a startling interview with Powell in
the Boston Globe, in which he said something like, "Oh yeah,
Bowers, I guess I had a bad day. I was obviously wrong on that
one. Too bad."

Oh, and good, I'm glad you mentioned the new third tier. I had
forgotten 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.

I find myself in the odd company of conservatives in my view of
the due process clause. We could discuss this if you want. Basically,
I think it really does have to do with "process." The concept
of "substantive due process" is an oxymoron, just as its converse,
"procedural due process" is a redundant.

[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.)

>can very well be argued that equal protection is at issue (especially
>if one accepts gays are gays from birth, which seems at least to me
>apparent), but the right of a same sex relationship is better seen as
>a liberty right.

I don't see why it's relevant whether homosexual preference is
determined at birth, by environment, or by choice.

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. 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.

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
Newsgroups: bit.listserv.politics