due process as requiring equal protection. Help.

[jfnbl at earthlink.com]

Equal protection may be implicit in due process to the extent the 
classification must be rationally related to a legitimate state 
purpose, but I don't the claim here is equal protection. Persons who 
commit different acts are, by definition, not similarly situated. My 
guess is that the statute exempts minors from what would otherwise be 
statutory rape, but does not exempt minors from what would otherwise 
be illegal if it occurred between consenting adults, and oral sex 
falls under the definition of criminal sodomy in at least some 
states. If oral sex between consenting adults is not a crime in 
whatever state your case is in, then I suppose there's an equal 
protection claim based on the different treatment of adults and 
minors, but good luck with that. The better argument would still be 
substantive due process, and you would point to legality of oral sex 
between consenting adults in support of the substantive due process 
argument that there's no rational relationship to a legitimate 
government purpose in criminalizing oral sex but permitting vaginal 
sex between minors.

John Noble

At 2:51 PM -0400 10/12/06, michael curtis wrote:
>A criminal defendant's attorney argues that a statutory 
>classfiication is irrational because there is no reason to treat two 
>types of conduct differently--making one criminal and one innocent 
>(oral sex among children of about the same age is a crime but 
>vaginal sex is not).  He mentions the 14th Amendment, at least 
>implicitly, & Lawrence and argues that the classification is crazy 
>but refers to due process rather than equal protection. So there is 
>a question as to whether the EP constitutional issue was properly 
>raised.  Does anyone know of any authority that due process requires 
>that similarly situated people be treated the same--i.e. that the 
>idea of equal protection was implicit in due process?  I think that 
>the primary author of section 1 thought that equal protection was 
>implicit in due process.  Of course, the 5th Amendment due process 
>has an equal protection component.
>
>Any thoughts
>
>Michael Curtis
>----- Original Message ----- From: "Bob Sheridan" <bobsheridan at earthlink.net>
>To: "Michael Richardson" <ballotaccessproject at hotmail.com>
>Cc: <conlawprof at lists.ucla.edu>
>Sent: Thursday, October 12, 2006 10:20 AM
>Subject: Re: Liberal
>
>>Regarding the liberal-conservative distinctions, the epithet "activist,"
>>and their relevance to this list, the following:
>>
>>The list contributor who questioned the relevance of my post quoting
>>Geoffrey Stone's analysis, which appeared in the Chicago Tribune, of the
>>term 'liberal' as explanatory of considerable Supreme Court
>>decision-making, which started this discussion, apologized privately
>>that he'd accidentally missed something before posting.  No problem; the
>>world of email is a strange place indeed.   The relevance of Prof.
>>Stone's commentary does not appear to be in issue, as it is plain.
>>
>>Prof. Zimmer later employed a term which resonated with me because it
>>was suggestive of a way that I was trying to look at Constitutional Law,
>>when he referred to a "structural level" of constitutional
>>interpretation.  I inquired what he meant by "structural," imagining
>>that our Conlaw edifice might be conceived to have some underlying
>>structure, such as liberal or conservative attitudes, which serve as a
>>foundation for much decision-making.  But structure also implies
>>"superstructure," which can mean the skeleton of a skyscraper that
>>reaches to the highest floor.  The distinction he was making was to
>>structure of government as opposed to individual rights, he kindly
>>explained.
>>
>>Which leaves me back at the puzzlement which prompted my curiosity and
>>the Stone quote.  Here's what got me thinking:  We study Conlaw, based
>>on the text and the cases, as though it were a body of knowledge and law
>>somehow separated from the rest of law and knowledge, which is a
>>mistake.  It is of interest to me to try to understand the attitudes
>>which underly, and suffuse, constitutional law and decision-making.
>>Conservative and liberal, today, are certainly important components, as
>>are other values called moral, religious, political, economic, activist,
>>etc.  Arguably they are 'structural' in some sense as they support,
>>indeed drive, constitutional decision-making regardless by whom made.
>>It would be difficult indeed to do justice to a case without some
>>understanding and discussion of these.
>>
>>It occurs to me that in briefing a case according to the usual facts,
>>procedure, law, issue, rationale method  (I've  forgotten the rubric and
>>its acronym, fortunately), that we should include a slot for
>>"structural" components of analysis such as the above.  While we may not
>>ask students to do so explicitly, we certainly do implicitly when
>>requesting the rationale, or when writing ourselves.
>>
>>I appreciate the discussion and hope it will continue from time to time.
>>
>>Bob S.
>>sfls
>>
>>
>>
>>
>>
>>Michael Richardson wrote:
>>>
>>>
>>>
>>>I have a question that might keep us talking about liberals and
>>>conservatives a bit and remain on topic to the list.
>>>
>>>I've always heard "activist" judges (i.e. those that believe the
>>>Constitution is a living document, etc.) contrasted with
>>>"conservative" judges who steadfastly follow tradition and precedent.
>>>Does that make the activists "liberal"?
>>>
>>>Wondering,
>>>
>>>Michael Richardson
>>>
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>>>_______________________________________________
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>>
>
>
>--------------------------------------------------------------------------------
>
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu
>>To subscribe, unsubscribe, change options, or get password, see 
>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>Please note that messages sent to this large list cannot be viewed 
>>as private.  Anyone can subscribe to the list and read messages 
>>that are posted; people can read the Web archives; and list members 
>>can (rightly or wrongly) forward the messages to others.
>
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed 
>as private.  Anyone can subscribe to the list and read messages that 
>are posted; people can read the Web archives; and list members can 
>(rightly or wrongly) forward the messages to others.