Substantive Due Process Fundamental Right toPrivacy-anachronistic or not?

[Howard Schweber]

At 01:08 PM 9/30/2006 -0400, Earl Maltz wrote:
>My apologies for misconstruing your point.  With respect to same-sex 
>marriage, how about the government believes that sexual relations between 
>members of the same sex is morally repugnant, and does not wish to 
>implicilty sanction such behavior by allowing same-sex marriage (not my 
>view, but one that I believe provides the necessary defense against a 
>constitutional challenge).

Allowing homosexuals to marry is not sanctioning homosexuality, it is 
merely declining to punish homosexuals.

As a First Amendment matter, I presume governments are free to express 
their moral repugnance for homosexuality or anything else.  But the 
government's belief that something is "morally repugnant" cannot be a basis 
for declining to grant benefits available to others on an equal basis.  The 
government of a given state may find gambling morally repugnant, but it 
cannot argue that people with a history of gambling will use their cars to 
get to places where gambing occurs and on that basis deny them driver's 
licenses.  Governments may find white supremacist ideology morally 
repugnant, but they could not deny student loans to members of (lawful) 
white supremacist organizations.

Since after Lawrence homosexual conduct cannot be made unlawful, denying 
the benefits of marriage to homosexual couples on the grounds of moral 
repugnance involves the same equation of the activity with the 
actor.  States can express disapproval of the activity, if they want to, 
but not by treating the actors unequally.

Then there is the selection problem:  governments presumably believe that 
child and spousal abuse are morally repugnant, but they are not allowed to 
ban persons guilty of those acts -- which are outright crimes! -- from 
marrying and receiving the associated benefits of marriage.  The singular 
selection of homosexuality, out of the panoply of things for which 
governments might express disapproval, gives rise to the suspicion that 
this is merely a pretext for denigrating homosexuals and their household.

Earl -- and everyone else, of course -- what do you think?

Howard Schweber
Dept. of Poli. Sci.
UW-Madison