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View Diary: Linda Harvey: Gays don't deserve 14th Amendment protection because they aren't "persons" (179 comments)

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  •  And I should say I think perhaps (0+ / 0-)

    your misunderstand is caused by thinking that equal protection is something applied to "people." It's generally about protection of different groups or classes of people against unfair treatment when compared to other groups or classes of people.

    Like why should welfare recipients be drug tested when college Pell grant recipients are not?

    But equal protection analysis goes further than that. The court applies different levels of scrutiny depending upon how it classifies the people who are being treated differently. So it is harder to treat people differently on the basis of race than it is to treat people differently on the basis of their economic status. The government, in passing its laws, has to have either stronger justifications for their laws if those laws would deny equal protection to a group with so-called "immutable" characteristics.

    This is why the behavior versus natural state argument is so important. If it is a behavior, "gay people" could still be due equal protection, but the state governments would only have to have a rational basis for treating them differently. And the rational basis test is a very low bar. If homosexuality is understood as something natural, then it is an immutable trait, like skin color or a person's sex. If that's the case, it is a protected class and the government has to have one hell of a good reason for treating it differently than another class.

    So she's arguing, in an unclear and round-about way, that homosexuality is not a natural human state, and because of that, it is not a protected class, and because of that, it is not due the same equal protection that it would otherwise get.

    "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

    by Grizzard on Thu Dec 13, 2012 at 10:46:09 PM PST

    [ Parent ]

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