Wednesday, April 18, 2012

To me, "due process" arguments have always sounded more convincing that equal protection (and immutability) in "equality"

One time, back around 1983, I was having Sunday night dinner in a restaurant on Cedar Spring, the Bronx, in Dallas, “between games” of a chess doubleheader in my apartment for a tournament in the Dallas Chess Club.   In the conversation, he said with a degree of surprise, “you aren’t gay, are you?”  Then, “you chose to be gay.”

He was so stunned that he lost the second game of the doubleheader to a simple trap (the first game had been drawn).  

Later, though, he would get over it and nominate me to the chess club board. 

The moral of that story, for me, is that I’ve never been too happy with relying on the “immutability argument”.  I even agree that in some sense it’s scientifically true (as in Chandler Burr’s “A Separate Creation” and 1990s Atlantic article).  But if behavior were somehow subject to legal or social censure, genetics alone wouldn’t matter so much with other issues (largely having to deal with food or substance abuse, and we don’t need the details right here to make the point).

The immutability argument has made it easier to use “equal protection” arguments, particularly in gay marriage litigation all over the country (not just California).

And Sandra Day O’Connor turned to it in her own opinion in Lawrence v. Texas in 2003.

Judge Anthony Kennedy, however, found a fundamental liberty interest, protected by the Due Process Clause of the 14th Amendment, not so much in the “act” itself but in the psychological processes surrounding it (call it “The Polarities” if you like), as quoted in Duke Law School’s excerpt from his majority opinion here

I am still, after all these decades, impressed with the notion that “sodomy laws” may have been a crude and canard-filled way of communicating the notion that raising the next generation is everyone’s pre-existing responsibility, and that “choice” has (or had) nothing to do with it.   

Related posting: March 29

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