Same-sex rights Flashcards
(35 cards)
Bowers v. Hardwick (1986) context
-At the time 24 states had anti-sodomy laws on the books. Georgia’s statute punished violates with prison term of 1-20 years (targeted toward homosexuals and heterosexuals)
-Michael Hardwick is arrested at his residence for engaging in oral sex with another man
-Hardwick is arrested but not charged, but he sues for a declaration that the law is invalid so there’s no future possibility of this happening to him or someone else
-Sex at the time was deemed only permissible in the family unit with the purpose of procreation
Why were anti-sodomy laws still active in the 80s?
Although these laws date back to puritancial families, nobody was brave enough to defend anal or oral sex - likely because it wasn’t the way to win elections
For Bowers v. Hardwick, how did each side frame the issue?
Prosecution: this case is about whether the Constitution confers a fundamental right to engage in consensual sodomy
Defense: about the right to make your own choices in the privacy of you own home
Level of scrutiny: fundamental right
-strict scruitiny applies; a law must be narrowly tailored to a further complelling interest
Level of scrutiny: no fundamental right
rational basis applies; a law must only be rationally related to a legitimate end
Bowers v. Hardwick outcome
-upheld laws criminalizing consensual homosexual acts
-ruled not a fundamental right, so rational basis applies
-prosecution argued that they’re advancing the social morality by preventing prostitution
In the case of Bowers v. Hardwick, what might be an argument against that the prosecution uses to reject a carveout for consensual sodonomy in the privacy of one’s home? What is a counterargument to this statement?
Illegal drugs in the context of the home is still impermissible, so why should this be any different
Counterargument: drug use isn’t victimless because of harm to health, which society pays for (e.g. if you overdoes and are taken to the hospital); this is not the case with sodomy
Lawrence v. Texas (2003) context
-A Texas statues made it crime for two people to engage in same sex sexual behavior (targeted gay individuals)
-Two gay men were charged a convicted of “deviate sexual intercourse”
Justice Kennedy and Lawrence v. Texas
-believes the liberty individuals are granted includes the right to engage in prvate sexual conduct
-He discounts the history and tradition of prohibiting same sex behavior because of the reason that homosexuality become “a thing” in the late 1800s
-Language Kennedy uses is controversial; as the author of the majority opinion he suggests that the Texas law fails the rational basis test (but doesn’t make it a fundamental right)
Lawrence v. Texas outcome
-failed the rational basis test and overturned Bowers
-laws prohibiting consensual same-sex behavior violates the liberty of the Due Process Clause
-affirmed right to private sexual conduct
Justice Scalia and Lawrence v. Texas
-dissenting opinion: argued that the Court’s decision would have far-reaching consequences, undermining the principle of moral legislation (laws based on moral beliefs)
-thought the judges were overstepping their role
-By the logic of Lawrence, is incest and bestiality now legal?
-counterargument for bestaility is that animals can’t give consent but counter for incest in harder (legally speaking)
Obergefell v. Hodges (2015) context
-Because same sex marriage was illegal in Ohio, Jim Obergefell and John Arthur flew to Maryland where it was legal and married
-Wanted to get married because Arthur has ALS and would pass soon
-However, they were not legally married in Ohio
-Obergefell wanted to require the state of Ohio to acknowledge him as Arthur’s surviving spouse – it is a dignitary interest
To counter Justice Roberts, how can same-sex marriage be distinguished from plural marriages?
Evidence suggests that plural marriage leads to disparities in social hierarchies and worse outcomes for women, children, and lower status men
Chief Justice Roberts on Obergefell case
-dissenting opinion
-argues that the there is not a history and tradition of same-sex marriage and compares it to being more drastic that plural marriages
-thought the ruling made a huge leap
Justice Kennedy on Obergefell v. Hodges (and response to Roberts)
-A lot of social issues that are now granted are not deeply rooted in the nation’s history (e.g. women’s right to vote and divorce, civil rights)
-As societies morals and attitudes evolve, that Constitution have been updated (however, Kennedy doesn’t call same sex marriage a fundamantel right)
Obergefell v. Hodges outcome
Legalized same-sex marriage nationwide under the Due Process and Equal Protection Clauses.
How did the Equal Protection Clause apply in Obergefell v. Hodges?
Court found that denying same-sex marriage violated this principle by treating same-sex couples differently without a justifiable reason
Equal Protection Clause under the Fourteenth Amendment
ensures that states treat all individuals within their jurisdiction equally under the law
laws discriminating based on race, nationality, religion and sex receive heightened judicial scrutiny
Otherwise, rational basis review still applies.
What qualifications must be fufilled to be a suspect class?
-The group has historically suffered discrimination, prejudice, and social stigma
-The group **possess an immutable and/or highly visible trait **
-The group is **relatively powerless to protect itself via political process **
-The group’s distinguishing characteristic does not keep it from contributing meaningfully to society
does not have to meet all criteria to be considered a suspect class
Suspect class meaning
Individuals who are subject to strict scrutiny under the Equal Protection Clause
Are same-sex individuals considered suspect class at the federal level?
No, they have not been deemed suspect class
When does strict scrutiny apply?
When a fundamental right or suspect class is involved
When does intermediate scruting apply?
to quasi-suspect qualifications
Exceedingly persuasive justification in in support of the law
At the time states were arguing that you can’t have kids with gay couples and you don’t want kids born out of wedlock because kids need support. Would this satisfy rational basis review?
No, because it’s based on the idea that people who can’t have kids shouldn’t be married. But what about those who are infertile?
