Newsgroups: bit.listserv.politics
Date:         Fri, 4 Sep 1992 16:05:10 EDT
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Re: War between the Jasons

>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.

>Yeah, you're right.  This is actually the interpretation I had in mind
>originally, but I neglected to include the "other than prejudice"
>qualification.  I don't know all the historical basis behind the 14th
>amendment, but it seems reasonable to assume that it does indeed ban outright
>prejudice.

Good. Then we probably have enough common ground to argue about this
sensibly.

>So in answer to one of your questions (and Kerry's), no, a state could not deny
>blacks access to a highway or *state* employment just because to be bigoted.

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.

I believe the two tiered test is a good one, though it has not
always been clearly argued for. The justification is, or should be,
that because of our nation's history, racial discrimination is
prima facie suspect, whereas a law that has a discriminatory
effect against, say, bakers, is not suspect in the same way. The
Constitution does forbid laws that have as their true basis an
irrational hatred of bakers, but the Court doesn't have to keep as
sharp an eye out for such laws.

>In the case of gays, I don't think the "prejudice" qualification applies.
>First, I'm assuming that you don't consider a condemnation of homosexuality on
>religious grounds to be the same as "I don't like gays because they're
>different" or some other non-sensical argument.

I must agree with Kerry about this. Well, I wouldn't say that the
two grounds are exactly the same. But if the only reason for treating
gays differently turns out to be, "Our religion says that homosexuality
is bad," then we haven't been given any reason that is relevantly
different from prejudice. Splashing prejudice with holy water
doesn't change its essential character.

What would be needed would be a publicly acceptable reason that
allowing gays to marry would jeopardize the health or safety of
the community. None has been offered, I doubt that any plausible
one is forthcoming. Let me give an example.

Suppose a rich man objects to progressive taxation on the grounds that
it treats him unequally, forcing him to pay a larger share of income
than a poor woman pays. His claim is valid if and only if the basis
for the differential tax code is a prejudice against the rich. Now,
it MIGHT be that. But the legislature has an apparently good argument
at its disposal. Taxing the rich more produces revenue, and the rich
can better afford to pay for that revenue than can the poor.

If advocates of restrictions against homosexual marriage could come
up with a plausible argument like that, they would have a good case
that the equal protection clause doesn't preclude their favored
laws. But I haven't seen one. Certainly Pat Buchanan didn't offer one.

>Of course, even if you grant
>that piety does not equal bigotry, that doesn't inherently justify all the
>differences with which the law treats homosexuals, but it does justify some.
>
>Take gays adopting children, for instance.  One could argue that since the
>state has an interest in keeping its wards emotionally and morally healthy,
>that the state therefore has the power to stop gays from adopting children,
>just as the state might prohibit a compulsive gambler or heavy drinker from
>adoption.

Only if it could show that adoptive gay parents are significantly worse
for children, morally and emotionally, than straight parents are. Do you
think there is evidence for this claim? I doubt it. If there is, why
don't advocates produce it? Why didn't Buchanan talk about it in his
speech? Wouldn't evidence have been more conducive to clear thinking
about the matter than Buchanan's actual strategy was?

>Similar arguments apply in most other cases, but I'll let you pick a couple so
>I don't have to write a treatise on justifiable legal distinctions.

As a matter of fact, I agree that similar arguments apply in most
other cases. I think all of the arguments are bad ones.

Jamie
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