Sexual Orientation Flashcards
Review
a) If there are classes of heightened scrutiny other than race, what are they?
i) Discrimination on the basis of age is not discrimination against a discrete and insular minority ii) Discrimination on the basis of sexual orientation?
(1) Normally look to immutability: it is a factor
(a) But: is sexual orientation really an orientation, or is it just a preference
(b) Caroline Products: discrete and insular minorities: is the community of non-heterosexuals discrete and insular in the way the court was thinking about it in terms of race?
(c) A history of discrimination being the most important factor? either a history of discrimination itself, or perhaps the history of discrimination that itself creates the stigma.
Romer v. Evans (1996):
amendment to CO denied special classification to homosexuals.
a) Rule: A bare desire to harm (animus) a politically unpopular group cannot constitute a legitimate governmental interest.
i) Kennedy stated that Amendment 2 relegates homosexuals to a solitary class and withdraws from them, but no others, legal protections arising from discrimination
(1) A law making it more difficult for one group of citizens to seek assistance from the government than another is a denial of the Equal Protection of the laws in the most literal sense (i.e. the means do not fit whatever ends sufficiently to pass rational basis review). (2) Court held the amendment lacked a rational relationship to a legitimate gov’t interest (desire to harm a group isn’t a legitimate interest). Note here the court is clearly applying a heightened level of scrutiny even though they call it rational basis.
- United States v. Windsor (2013)(Supp. 78):
a) Defense of Marriage Act (DOMA) states for the purposes of federal law, the words “marriage” and “spouse” refer to legal unions btw one man and one woman.
b) Court held DOMA deprived same-sex couples legally married under state laws of their 5th Amendment rights to equal protection.
i) The purpose and effect of DOMA is to impose a “disadvantage, a separate status, and a stigma” on same-sex couples in violation of the 5th Amendment’s guarantee of equal protection.
ii) Kennedy is concerned that the federal law does not create its own definition of marriage that encompasses a wide range of things, but carves out a particular category and shows animus. It is the same kind of animus / hostility that is dispositive in Romer.
iii) Best way to think of the case as one more step of giving sexual orientation heightened scrutiny
(1) Movement towards heightened scrutiny w/o saying so (think Reed v. Reed, heightened scrutiny masquerading as rational basis)
c) Scalia dissent
i) same as Lawrence and Romer. Same debate. The level of scrutiny is never articulated. Scalia takes Kennedy to task for avoiding the issue once again.
ii) One of the things that makes this difference: this case is based largely on fundamental rights doctrine that on EP.
iii) Windsor says that marriage itself it a fundamental right, and because of that things flow from that that otherwise wouldn’t.
(1) it is the majorities effort to forge a compromise, perhaps as Scalia says, it is the majorities effort to signal what it is going to do in the same sex marriage case.
- Hollingsworth v. Perry (2013)(Supp. 96):
a) Prop 8 in Cali held unconstitutional; dismissed in circuit court for lack of standing. (state officials refused to defend laws, agents of the proposition the only ones left to defend).
Bostic v. Schaefer (2014)
a) Fourth circuit held that the Virginia Marriage laws (which barred same-sex marriage or prohibited the State’s recognition of otherwise lawful same-sex marriages from other jurisdictions) violated DPC and EPC to the extent that they prevented same-sex couples from marrying and prohibited Virginia from recognising same-sex couples’ lawful out-of-state marriages.
b) Cert denied.
c) Important feature of this: it is almost entirely a DPC rather than a EPC case. It relies heavily on the idea that there are cases including Loving that say marriage is a fundamental right. This court says that marriage is fundamental right, therefore it gets strict scrutiny
i) However, as a political strategy, best to keep this in EPC arena rather than DPC arena to avoid questions of incest. marriage to parents, etc.
