Equality Law and Sexual Orientation- Law and Society

for final exam

Romer v. Evans (1996)

Colorado voters adopted amendment to state constitution that would prevent queer people from seeking legal protections against discrimination they faced. 6-3 decision that stated the statute violated the equal protection clause and singled out a group of people

Obergefell v. Hodges (2015)

Ohio voters passed an amendment in 2004 stating that marriage is only between a man and a woman and banned same-sex marriage. 5-4 decision that said the right to marry is protected under the due process clause and the equal protection clause. Precedent: Loving v. Virginia

303 Creative v. Elenis (2023)

Did the Colorado anti-discrimination law violate Smith’s 1st amendment freedom of expression? Yes (6-3), 1st amendment protects expression, applies strict scrutiny.

Respect for Marriage Act (2022)

all legal marriages must be recognized, even across state lines

Privacy and LGBTQ+ Rights

individuals have a right to do whatever they choose with their own bodies as long as they do not harm others, there is no valid societal interest in private sexual activity

Bowers v. Hardwick (1985)

(5-4), upholds a Georgia law that outlawed homosexual activity. Neither liberty nor privacy protect the activity in this case

Lawrence v. Texas (2003)

Does a law that criminalizes homosexual sex violate the 14th amendment’s equal protection clause and a person’s fundamental liberty in the due process clause of the 14th amendment? Yes (6-3), Bowers was not correct when it was decided, and it is not correct today. Extends to right to privacy to sexual activity

Due Process and LGBTQ Rights

Marriage, in particular, is a fundamental right and denial of the right violates the Due Process clause or the 14th amendment (state action) and 5th amendment (fed. government action)

Equal Protection Clause and LGBTQ+ Rights

LGBTQ+ people are an oppressed class and have suffered persecution and discrimination in much the same way as African Americans and women; treating queer people differently is arbitrary and unfair

Sex discrimination and LGBTQ+ rights

treating lesbians and gay men differently reinforces the hierarchy of males over females and thus is wrong because it oppresses women; the stigmatization of queer people is part of the larger system of social control based on gender

Arguments for sexual orientation as a suspect class

Queer people are legally discriminated against and held to inferior status before the law, sexual orientation is a irrational classification; sexual orientation, like race, is immutable

Arguments against sexual orientation as a suspect class

Unlike POC and women, gay people have never been systematically excluded from political life, nothing in constitution mentions sexual orientation

feminist argument for why discrimination based on sexual orientation is sex discrimination

homosexuality is threatening because it calls into question the superior status of being male, homosexual male behavior reduces men to the status of women and lesbianism as insubordination, lesbianism is less threatening so is more tolerated

Bostock v. Clayton County (2019)

Does the Civil Rights Act protect workers against discrimination based on sexual orientation? Yes (6-3), when the Act bars sex discrimination, this includes sexual orientation and transgender status