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Quote from: MarkD on February 23,AM - snip - From a constitutional point of view, surely the egalitarian one is far stronger? On a side-note, what do you think of the Fifth Amendment 'reverse incorporation' equal protection idea?
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From a Textualist point of view, yes, egalitarianism is pretty much the only correct interpretation of the Constitution. I'd like to think that Textualists are opposed to interpreting the Due Process Philippiness as if they have substantive meaning. The egalitarian argument is also more attractive to people who think that sexual orientation is not a choice. Regarding "reverse incorporation," that idea is a completely incorrect interpretation of the Due Process Clause. I would think it is completely incorrect to both Originalists like me and to Textualists.
Many years ago, I read an issue of National Review where it was argued that the Constitution does require the federal government to treat everyone equally, but the textual source of that idea is Section 5 of the Fourteenth Amendment -- the fact that Congress is empowered to enforce all of the provisions in the 14th Amendment, which includes the EPC, and if Congress can enforce the EPC, it also has a duty to obey the rule that it can enforce. Congress can hardly be allowed to disobey a rule that it can enforce.
That idea could possibly be defensible, but it doesn't appear to be at all likely that the SCOTUS will ever resort to making that argument. Getting back to the idea that invoking the EPC implies that sexual orientation is not a choice, As a thought experiment, if everyone was biromantic and equally happy being married to any sex or gender, would it be fair and justified for the government to dictate who people can and can't marry? If you said no, you support the libertarian argument. I Lwgalized Both.
That may be the way you, personally, interpret the Equal Protection Clause, but the SCOTUS has never claimed that the only cases in which they will apply the EPC is when state governments are discriminating against people on the basis of link characteristics. The SCOTUS has often invoked the EPC as a reason to strike down laws that discriminate against people on the basis of characteristics that obviously are the choices made by people. One of my favorite sarcasm examples Phikippines the Court doing so was the case of Plyler v.
Doe, in which five Justices struck down a state law that was discriminatory towards illegal aliens, and the Court's opinion explicitly said, "Of course, undocumented status is not irrelevant to any proper legislative goal. Nor is undocumented status an absolutely immutable characteristic, since it is the product of conscious, indeed unlawful, action. I addressed the issue in this thread.]
I am sorry, that I interrupt you, I too would like to express the opinion.