spracne, you appear to be basing your 14th argument on equal protection. could there also be an argument in life/liberty? it would seem to me that there could be and that it would be a pretty direct argument, but i dunno.
There are two clauses in the 14th Amendment where all the action happens: due process and equal protection.
Due process encompasses both procedural due process and so-called substantive due process. The conservatives in this thread are skeptical about substantive due process because it is sort of a nebulous concept from which "new" liberty interests are recognized. Under the 14th Amendment, "liberty" is due process, and "equality" is equal protection. Because of the skepticism surrounding substantive due process, I was making a case solely under the Equal Protection Clause, because that clause is less controversial. But the reality is that the court applies a hybrid approach, incorporating elements of both. You can see this in the gay rights cases and in the abortion cases. I can sympathize with the dissenters ITT because it is a little bit of slight of hand that the court engages in. But I have accepted the fact that the machinery of democracy occasionally fails to work for marginalized groups, and while the Supreme Court is reluctant to use its extraordinary powers in this fashion, if the elected branches of government fail to act for a few decades, eventually the Court will engage in a bit of legal fiction in order to do what must be done. Yes, it's very undemocratic. But pure democracy is not a happy state of affairs.
