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Author Topic: substantive due process  (Read 1570 times)

laurenlaw

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substantive due process
« on: December 15, 2008, 03:38:15 PM »
I'm having trouble differentiating between substantive due process and equal protection issues.  I was under the impression that if a right is taken from some people, it's an equal protection issue.  If it's taken from all, it's a due process issue. 
What if there's a hypothetical that homosexuals must go through rigorous regulations before marrying, that heterosexuals do not have to go through?  First, you'd analyze the statute under Equal Protection arguments because there's a distinction made between heterosexuals and homosexuals (RB review).  But would you also analyze it under substantive due process to argue that it burdens a fundamental right, marriage?  I suppose I'm just confused about what kind of hypothetical could embody both equal protection and due process issues.

dashrashi

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Re: substantive due process
« Reply #1 on: December 16, 2008, 04:54:59 PM »
Isn't there no EP argument there b/c homosexuals aren't a protected/suspect/whatever class?

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PABitz

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Re: substantive due process
« Reply #2 on: December 16, 2008, 05:20:39 PM »
Isn't there no EP argument there b/c homosexuals aren't a protected/suspect/whatever class?

Feckin' con law.

That the Court hasn't recognized homosexuals as a suspect class doesn't mean that there is no EP argument. At the very least, one should still pursue a rational basis argument. Above that, you could argue that the failure to recognize homosexuals as a suspect class has been unprincipled (accident of birth [as is being supported by more sources] + minority historically discriminated against = at least some argument to be made, though a failing one at this point). Also, one could pursue a sex discrimination component for most legislation implicating distinctions on the basis of sexual orientation.

Again, the arguments likely fail, but that doesn't mean one shouldn't raise them and see them through to their natural conclusion.
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dashrashi

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Re: substantive due process
« Reply #3 on: December 16, 2008, 05:45:36 PM »
I mean, I obviously agree with you (and I think the whole suspect-class thing is frankly quite a bit of hooey), but in an exam, if you jump right into a full-blown EP argument if the question is re LGBTQ, you're gonna get dinged a few points if (as I said) you jump right in, and don't say, "Of course, homosexuals are not currently a suspect class, but for reasons A B and C they should be, so if the court ever takes its head out of its ass, the EP argument would go like this...".
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Saw dashrashi's LSN site. Since she seems to use profanity, one could say that HYP does not necessarily mean class or refinement.