Newsgroups: bit.listserv.politics
Date:         Fri, 11 Sep 1992 12:00:51 EDT
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Re: Legal Standing/Homosexual

>From:         Sue Clark <SACLARK@UNMCVM.BITNET>

>Given a scenario, if such a case of homosexual partnership and legal standing
>were to arrive before the Supreme Court, (and I am not sure if such a one
>has), as the Court now stands:
>
>Would the Supreme Court, with its current appointees, pass such a law allowing
>homosexual partnership equal legal standing as a heterosexual marriage?

Good question.
Well, actually, we know for sure that it wouldn't pass a law, because
the Supreme Court cannot pass laws. But, would it say that current
marriage law violates equal protection?
I agree that the answer is very unclear. Several of the current Justices
have no clear ideology or strategy. I would actually include Scalia
in that category; although he has a fairly clear ANNOUNCED approach,
he doesn't seem to use it very consistently.

One might think that because of the conservative bent of the new
appointees, the Court would adopt a laissez faire attitude,
allowing state governments to pass laws as long as they aren't
very clearly unconstitutional. But it hasn't shaken out that way
so far.

>myself.  If the homosexual legal standing was given a decision today, I
>would be uncertain as to their vote, however, I wouldn't assume the vote
>to be no, possibly with Scalia, Thomas, being definate no's, O'Connor, Souter,
>and maybe Kennedy also voting no, Renquist, Blackmun, White, and Stevens are
>big question marks.

My guess, without much confidence is this:
Voting to uphold current discriminatory marriage law,
Rehnquist, Kennedy, Thomas, Souter, Scalia.
Voting to strike it,
O'Connor, Blackmun, White, Stevens.

I'm least confident about O'Connor, Souter, Scalia, and Stevens.

>Would a more moderate court then make a difference if such a case were
>to arrive?   If both are replaced by Clinton with liberal judges, no,
>maybe not with only two,

That's not necessarily so.
Kennedy and Souter might well be influenced by especially cogent arguments,
if Blackmun and White are replaced. While they can be counted on to
vote solidly in favor of a strong reading of equal protection, they
can't be counted on to wield much influence or give really persuasive
arguments. A new appointee might be different.

>chances under Clinton appointees.  How far  would Mr. Clinton's litnus
>test extend in nominating judge appointees in this case?   Would the
>Congressional commitee agree with Mr. Clinton's litnus test in voting
>for the next judges?

What litmus test is that? Just out of curiosity.

I know that Bush supposedly had a litmus test using Roe as the
litmus paper. Of course, the degree to which that is possible
is seriously in question. Reagan had the same litmus test, but
his paper was defective.
Which sorts of issues are supposed to be the litmus test for
Clinton appointees?

>It is obvious that Bush appointees will once again be, I think not just
>conservative, but very conservative.  Thomas is proof of that, even though
>there may be more fights like Thomas had.

Again, I am doubtful about this.
For one thing, I don't know of any "very conservative" jurists left
for Bush to appoint. Then again, no one knew about Souter. But
maybe that's the point: Souter was thought to be ultra-conservative,
but it may not work out that way.
Further, I believe that any attempt to install an obviously conservative
justice would meet with concerted and strong opposition in the Senate.
Thomas squeaked through, he was lucky.

All of this reminds me, Welcome Back, MacRae.

Jamie
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