Substantive Due Process Fundamental Right toPrivacy-anachronistic or not?

[Bob Sheridan]

Howard Schweber wrote:

"...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..."

***
Two things:

1.  One of the things that government doesn't usually do is to express 
moral repugnance statutorily without banning or requiring something, 
with consequences such as punishment, forfeiture, etc..  Maybe it would 
be better to encourage, allow, or suffer government to express itself 
morally without doing either of these.  But that's not how government 
usually functions.  Usually the people behind the legislation want 
government to act as they wish it to act.  They want the moral weight of 
government to weigh in on their side to show the other side that it is 
immoral, not worthy of consideration, and should go away.

2.  When we talk of government regulating an activity, such as marriage 
between gays, isn't it really the case that some group of citizens has 
put together a  coalition of sufficient influence to legislate a ban for 
moral reasons?  There may be no real governmental interest in banning 
such relationships that are of any significance.  From the standpoint of 
government, it may be better for people to unite in relationships that 
are entered in the hope that they will last a long time and be 
comforting and productive personally, economically, socially, and in 
other ways.  The real party in interest is the person or group which 
advanced the legislation, not the government.  Looking for the 
governmental interest, as apart from the 
biased-group-behind-the-legislation interest has a bit of a shell-game 
aspect to it.

Bob S.
sfls

> 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
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