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Newsgroups: bit.listserv.politics
Date:         Fri, 4 Sep 1992 21:30:00 EST
From:         JCOCURUL@DREW.BITNET
Subject:      Re: 14th amendment jurisprudence

In article <tfilt316731@drew.edu>, Jamie <PL436000@BROWNVM.BITNET> writes:
>>From:         ZIMMERJ@WABASH.BITNET
>
> JasonZ,
>
>>I am.  I still don't recall Buchanan saying that we should deny gays any of
>>their constitutional rights, and just mentioned a few particulars.
>
> I believe that what Buchanan advocated is a violation of equal protection.


the fact that this list had to go ad infinitum on the need to let
homosexuals have equal rights is nauseating.  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!

> Right.
> To fill in a bit, the Court employs a tiered test. The basic test is
> the "rational basis" test. A law that on its face has a discriminatory
> effect must have some at least moderately plausible goal other than
> putting bigotry into effect. When the category of discrimination is
> racial, the test is a bit more stringent. It's something like this
> (maybe JOE can help me out here). Not only does there have to be
> a rational basis, but the goal must be "compelling," and there
> must be no reasonable alternative, that is, no other reasonable
> way to pursue the goal without the discriminatory effect.

well since you asked...(I will not misstate the constitution or
anything this time!).  You basically have it right, but let me add
the legal jargon.  This area of law is important in deciding 14th
amendment cases both under the due process and equal protection
clauses -- abortion is involved here too for instance.  The language:
"nor shall any State deprive persons of life, liberty, or property,
without due process of law; nor deny to any person ... the equal
protection of laws."  So gays both have an equal protection concern
plus a liberty right -- the latter was pushed by the minority in
Bowers.
    The courts really use a three tiered test -- the lowest tier is
the rational basis test where all one needs to show is that the
discriminating law has a rational state interest at heart.
The top tier is the strict scrutiny test where one must show that there
is a compelling state interest in the law that justifies the
discrimination.  This is used in cases of "suspect classes" i.e.
classes that have a history of discrimination such as race and sex.
In the case of liberty issues, if the law in question infringes on
"ordered liberty" or some other way of noting liberty held dear in
history, this test is used.  With time history changes, and for
instance bans on interacial marriages aren't compelling anymore.  The minority
in Bowers argued the right of privacy and sexual liberty is dear
enough and reasons for homosexuality no longer rational or compelling
enough of a wrong to penalize it.  The middle tier is somewhere in
between and now abortion fits here with the 'undue burden' test of the
June decision.

>Jamie


I added the talk of due process because I think gay rights, like
abortion rights deals with liberty more so than equal protection.  It
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.  Especially in the cases of bisexuals, at issue is
the right or liberty of choosing your partners in the intimate area of
sexual/personal relationships.  Those who want to ban this right or
penalize it by making infringing on other rights (the right to raise
children, marry etc.) need to show a compelling state interest for doing so.
Religious reasons are banned by the first amendment.  Talk of
perversion need to show how so called "perversion" harms society
enough to ban the right to choose who to love and cherish.

                -Joe


P.S. on a completely different topic, why should we penalize people
in Love Canal for buying contaminated land when in the 1950s they
didn't know it was harmful?
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