Sexual Orientation

Question 1

1) Suspect/suspicious classification?

Answer 1

a) insular/discrete minority (race)
b) history of discrimination (sex)
c) immutable characteristics

Question 2

2) Romer:

Answer 2

Under RB test, a bare desire to harm a politically unpopular group doesn’t constitute a legit gov’t interest

a) F: st Con. amendment prohibiting statutes that prohibited discrimination based off sexual orientationuncon’l
b) Dodges whether SO classification is suspect! FT: IT IS!
c) Big Q: Is amendment a denial of a special right (i.e. not allowing tax credits for restaurants) or discriminatory?
i) Kennedy: amendment singles out protections for SO = disfavored treatment = discriminatory
(1) Scalia: if they are not a suspect class, they can be singled out (non-st students paying higher tuition)
(2) Scalia: only restricts states form enacting statutes giving special protections for SO

Question 3

3) Litigation development

Answer 3

VT case: court said civil union (all benefits of marriage) must be recognized as a state con’l right (unreviewable)

–>MA case: right to same-sex marriage under state Con.