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Date:         Sun, 13 Sep 1992 23:43:00 EST
From:         JCOCURUL@DREW.BITNET
Subject:      Re: Legal Standing/Homosexual

In article <tfilt321794@drew.edu>, Jamie <PL436000@BROWNVM.BITNET> writes:
>>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?
>
Bowers v. Hardwick rejected the idea of protecting "homosexual
sodomy" 5-4 as a due process right.  The question then arises whether an
equality under law claim
can be won (the question wasn't addressed in the case though the
dissent questioned the rationality of making illegal only _homosexual
sodomy_, this dissent was made up of Brennan, Marshall, Blackmun, and
Stevens), or more to the point, if homosexual marriage would be
protected in such a way.  It is to noted that the majority of Bowers
rejected that "homosexual sodomy" is a matter of 'family, marriage, or
procreation' to be protected under the right of privacy.   Thus, I
doubt that the court would see homosexual marriage as equal to
heterosexual marriage -- sex seems to be a matter of intimate family
or marriage concerns, and homosexuals do have 'marriage' arrangements
in fact or in deed, so their declaration would make homosexual
marriages unequal to heterosexual ones.

> I agree that the answer is very unclear. Several of the current Justices
> have no clear ideology or strategy.

Stevens and Blackmun most likely would justify homosexual marriages as a due
process right of privacy, so the equality under the law issue isn't
as important (Blackmun and to an extent Stevens did this for abortion
funding, seeing no need to go into equality arguments though it was
brought up).  Rehnquist has a narrow view of the 14th in general, so
it's very doubtful he'll buy such an argument.  Thomas and Scalia have
similar views and I think would see equality under law as a limited
one just by race and gender; sexual equality is too strange for this
duo who like original intent.  White probably would agree that sexual
preference isn't a "suspect class" that the equal protection clause
was meant to protect.   Souter and Kennedy are question marks, but
sexual equality seems too original of an idea, too far from the usual
idea of equal protection to hope for both votes.  O'Connor is also a
question mark, especially because she voted in the majority for
Bowers.  With three question marks, the chance of a win for homosexual
marriage seems slim.

> 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.

surely if states want to make such laws protecting homosexual marriage
it would be okay -- NYC for one has limited protections

>>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,
>
it is to be noted that Arkansas has a less than laudable record for
protecting homosexual sodomy.  Clinton didn't go out of his way to do
so, and tries to be more conservative in a lot of issues.  This is
much more so in criminal justice (he refuse to stay orders of
executions, at least one was mentally incompetent), so there is some
hope for liberal appointments in the matter of personal relations.
He would probably replace Blackmun, who already would protect
homosexuals, and White, who probably wouldn't.   Next at 72 or so is
Stevens, moderate to liberal on such issues.

> Which sorts of issues are supposed to be the litmus test for
> Clinton appointees?

definitely abortion, he said so himself

>
>>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.
>
> 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.
>

Thomas was replacing Marshall, so there was a reason, even before the
Hill problems (without Hill, he'd get more like 60-40, not bad seeing
how conservative he was).  It is true however that next comes
Blackmun, the second to last person with liberal leanings esp. on
abortion Bush would be very careful.  However, the person still would
be very iffy on many issues such as equality for homosexual marriage,
a concept that is revolutionary for the federal courts.

> Jamie
>
    -Joe

P.S. Anyone have any comments on the Edward Carnes appointment to the
federal bench?  Heavy activity on the list -- 2 days, 200+ posts!
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