Substantive Due Process - Showdown at the OK Coral

Last week the Attorney General of the Commonwealth of Virginia, the state of my origin, sent a letter to State Universities telling them that State Universities are the equivalent of state agencies not state owned corporations and as such they cannot set their own hiring and firing and equal protection policies for LGBTQ people so long as the state legislature does not approve further protections. This was only a few weeks after the governor executed an executive order declaring that only the legislature could enumerate what constituted a discrete and insular minority group that is eligible as a suspect class. And in so doing, the Governor stripped LGBTQ people of all state protections.

Since the federal government hasn't yet begun to protect LGBTQ people, The states are presently free to do what they want in that arena. And the Governor and Attorney General of VA are doing exactly what they want to. . . and like in other states that have been wrestling with the same issue. . .

It is a Showdown at the OK Coral. And it is ALL about which government body, the Legislature or the Courts, has the power and authority to enumerate what rights are inalienable as part of the liberty Interest in the Substantive Due Process clause.

The 14th Amendment reads in pertinent part:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Wikipedia - one of my favourite basic starting points, sums up how the U.S. Supreme Court evaluates substantive due process:

Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment,[citation needed] which originated in United States v. Carolene Products Co., 304 U.S. 144 (1938),

Those three types of rights are:
-the rights enumerated in and derived from the first eight amendments in the Bill of Rights (e.g., the Eighth Amendment);

-the right to participate in the political process (e.g., the rights of voting, association, and free speech); and

-the rights of “discrete and insular minorities.”

The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.

In This Corner:

On the right is the GOP who proclaim that judges have no authority to enumerate previously unenumerated rights, that such should remain the realm of the legislature, and when those judges do enumerate rights they are "activist Judges" This has been the traditional battle cry when ever the enumeration of rights seems to upset the cultural norms that conservatives generally do not like to disrupt.


This is particularly the case with the rights of discrete and insular minorities. Jim Crow is the first thing that comes to mind, But you could pick just about any political hot button issue that affects, previously unenumerated fundamental rights, or minority rights: the right to have control over how you raise your children, abortion, sexual privacy, privacy over one's body, right to reproduce or not reproduce, right to chuse the gender of one's sexual partners. the list goes on.

In each of these cases the Court has acted, and in each of these cases conservatives for the most part have railed against the Court for acting, claiming that the legislature is the proper body to act.


In The Opposite Corner:

On the Left are the Dem's who say that both Judges and the Legislature should be allowed to enumerate what rights are inalienable under the liberty interest of the Substantive Due Process Clause. The Dems argue that the legislature is feckless with respect to protecting the inalienable rights of discrete and insular minorities (the majority doesn't usually trample their own rights).

Dems argue that it is left to the Court to decide. That with respect to unpopular minorities the legislature, who has to face popular election, will always be feckless. They, by nature, cannot with impunity ignore the majority's will. Unfortunately the majority's is not always in line with the rule of law. Nor has the majority's will traditionally been as respectful of the minority's right to equality under the law, as have the courts. It was the failing of the legislature, after all, that declared African American's 3/5 of a person.

So now that the stage is set. The crowd is gathered and the the showdown is starting. . . .

The Strategy & Weapons:

Electing Legislatures:
Due to our governmental system of checks and balances electing a legislature that fits which ever of these two agendas they are committed to, is one of the first ways in which to bring about their agenda. The legislature can use all type of procedural and substantive moves to forward the goal.


State Agencies & Executives:
Agency Rules and Executive Orders allow manipulation to the maximum of those rules of governance that interact with peoples lives on a daily basis. By creating a hedge of rules around the outcome that you would like to see, you can effectively control the forum/issue.


Stacking Courts:
To insure that those courts will either enumerate further substantive rights as being fundamental, recognise new discrete and insular minorities, or further protect currently named discrete and insular minorities, OR staking the courts to insure that these things do not happen.


Amending Constitutions:
By amending constitutions to insure the outcome that they wanted they can make an end run around the checks and balances of the system, and an end run around substantive due process or lack thereof. An example of this was The 14th amendment. We fought a war and then made the rebel states ratify the amendments in order to be re-admitted to the union. Or Equal Rights Amendment which was in response to the Court chusing not to act. Or in the case of Prop 8 and its sister amendments (attempts by states to avoid full faith & credit by establishing anti-gay policies as their states fundamental policy)


Who the hell cares?
Well, I care for starters. First off, I fit into three discrete and insular minority groups. I'm Gay, I'm Latino, and I'm Mormon. In case anyone hasn't noticed, none of the three are particularly popular groups. lol Secondly, I'm very interested in insuring that my fundamental rights are preserved, and that the government gets the hell out of regulating them, but is fearless in protecting them.

I've blogged a fair bit on Gay rights. It's been an issue for me. In part because it affects my daily life, my culture as a gay man, and in part because my LDS Culture and church affiliation has decidedly declared war on my gay culture. Leaving me and so many other LDS people caught in the cross fire.