PLS 520 Sexual Orientation Cases

Boutilier v INS/Immigration and Naturalization Services (BP)

Issue

• Lawful resident applying for citizenship, submits affadavit that he was charged with sodomy but not convicted

• Gov’t starts to deport him, arguing that he was afflicted with a psychopathic personality defined by Immigration and Nationality act

• Two Primary Issues

  • Is INS accurately interpreting law that congress passed?

  • Are their constitutional problems with that law?

Rule of Law

1. INS correctly interpreted the act

2. The law did not violate the due process clause

Rationale

1. Congress is not talking about psychopathic in medical sense, congress intended psychopathic personalities to exclude homexuals and other “sex-perverts” from entry

2. • There is no due process violation of the Act, because it was a valid exercise of Congress’s use of immigration laws

   • No due process violation, because he was not deported for something he did, only a character he possessed

*First case that reaches the Supreme Court concerning sexual-orientation

Bowers v Hardwick (BP)

Issue

• Hardwick is charged with violating GA statute that prohibited sodomy

• Although, law wasn’t enforced, Hardwick challenges the statute’s constitutionality arguing that 1) consensual behavior is protected by right privacy established in Griswold, and 2) should establish it as a right

Rule of Law

• The GA statue did not violate right to privacy

• Can’t establish it as a fundamenta right

Rationale

• Not a fundamental right in terms of privacy- It is not connected to family or procreation (court had already established these as falling under the scope of privacy)

• Not a fundamental right otherwise- Only rights that are deeply rooted in nations history— sodomy was once banned in every state proving its not a fundamental right

• Using Rational Basis- morality is a legitimate gov’t interest

Romer v Evans (BP)

Issue

• CO passes law prohibiting entities from passing ant-discrimintory laws treating gays and lesbians as a protected class

• State argues that the amendment simplie denies homosexuals “special rights”

Rule of Law

• Kennedy applies Rational Basis

• The CO statute violats the EC of the 14th amendment

Rational

• The state’s legitmate reasons are not satisfactory

  • freedom of association allowing business to disciminate on moral grounds

  • conserving resources for protected claws

• The real goal was to discriminate

Dissent: Scalia

• contradictory that states can criminilize same-sex behavior but can’t prohibit anti-discrimination laws

*First case where EC was used to protect gays

*Creates tension between Bowers and Romer

*Kennedy does not apply traditional rational basis-

*Puzzling that there was a lack of concurring opinions

Lawrence v Texas (CB)

Issue

law in Texas prohibited SAME-SEX sodomy

• Does this law violate Due Process clause of 14th amendment, is

Rule of Law

• Applies Rational Basis

• The Texas Statue does violate the Due process clause of the 14th amendment

• Overturns Bowers v Hardwick

Rationale

• 1 reason for Overturning Bowers

  • It is not only about sexual-activity but right to be intimate and autonomy

  • Court did not understand extent of liberty at stake

  • Sexual activity is about larger act of romantic relationship

• 2 reasons for why this is the best decision

  1. Ruling is consistent with European ruling

  2. Texas’s position is a minority position, 2 cases had been passed since then 1 being Romer

Concurring: O’Connor

• states can ban sodomy

• use equal protection clause because it distinguishes between heterosexuals and homsexuals

United States v Windsor (BP)

Issue

- Primary Issue

• 1996 DOMA federal law is passed which defines marriage between man and woman

• Windsor is denied spousal tax exemption from late spouse because of DOMA

• Argues DOMA violates equal protection values of 5th amendment

- Secondary issue

• exectutive branch does not wish to defend law, so congress unusally defends its own law

Rule of law

• Congress does have standing

• Applies Rational basis

• DOMA vioaltes equal protection values imbedded in due process rights of the 5th amendment

Rational

• DOMA serves no legitmate gov’t interest

• even worse- its intention is to do harm and seeks to injure

• DOMA interferes with state’s ability to define marriage

• imposed a stigma on gays and lesbians

*Court is accused of overlooking standing issue to get to the merits of the case

Obergefell v Hodges (CB)

Issue

• State laws that define marriage as heterosexual by nature

• conflicting ruling beween lower courts, 14th has to mean same thing for each state

1. Does 14th require states to license same-sex marriage?

2. Does 14th require states to recognize same-sex marriage licensed in other state

Rule of Law

• Applies Rational Basis

• State laws defining marriage as heterosexual violate the 14th amendment

• as a result for 2., states do have to recognize same sex marriage licensed in other states

Rationale

• Such laws violate the due process component of the 14th amendment, marriage is a fundamental right for 4 reasons

  1. inherent in concept of individual autonomy

  2. supports 2 person union unlike any other form

  3. state guards children and family

  4. marriage is a key stone to social order

• Such laws violate equal protection of 14th

  1. different treatment than heterosexual marriages

*Opinion lacks engagement with the state’s rationale for laws and never argues that heterosexual marriages are same as hommosexual ones

Bostock v Clayton County (BP)

Issue

• consolidation of 3 cases

• does prohibition of employment sex-based discrimination cover gay and transgender discrimination?

Rule of Law

• title VII of the Civil rights act extends to gays and transgender individuals, therefore employment discrimination on basis of sexual-orientation or gender identity violates VII of the Civil Rights Act

Rational

• It is impossible to engage in sexual-orientaiton discrimination without engaging in sex-discrimination

• for sexual orientation- if there were two people both attracted to males, and one was a female and the other a male- discrimination is essentially on there sex

• for transgender- if you discriminate between two people who identify as female, and they differ in biological sex, then you are basically discrimanating on sex

Dissent

• interprative approach

• congess tried to amend

• no indication of this ruling in any prior sexual-discrimination cases