Name:
Lesson:
Source:
Michael Gerbec
Fourteenth Amendment and Gay Marriage
Original
Time & Day Taught: 20 May 2015; 50 Min. Period
Number of students: Lesson designed for 32 students.
Materials required: PowerPoint, Handout
A.
GOALS
(1) Help students understand what the Fourteenth Amendment protects.
(2) Help students understand how the Fourteenth Amendment is applied.
B.
OBJECTIVES
(1) Knowledge Objectives: As a result of this class, students will be better able: a.
To define the Fourteenth Amendment protections
(2) Skills Objectives: As a result of this class, students will be better able: a.
To apply the Fourteenth Amendment to their daily lives b.
To apply the Fourteenth Amendment to a fictitious fact pattern
(3) Attitude Objectives: As a result of this class, students will understand: a.
The importance of equal protection
C.
CLASSROOM METHOD.
(1) Interactive lecture on the Fourteenth Amendment and Equal Protection a.
Ask if anybody knows what the Fourteenth Amendment is? b.
Give brief history: i.
Ask: when was it passed? Right after the Civil War (part of the
“reconstruction amendments”) ii.
Why was it passed? To make sure the Thirteenth Amendment was actually adhered to. iii.
Was it adhered to? Not really; not, at least, until the Civil Rights
Movement c.
Explain what it protects: i.
Ask: what does it protect? Answer: well a lot of things ii.
We’re going to be looking most closely at the Equal Protection Clause
1.
Ask: What does equal protection mean?
2.
Answer: basically, a state cannot discriminate against a particular group of its citizens; everybody has to obey the same laws, and those laws must be applied equally across the population.
3.
But laws are by their nature discriminatory (criminal laws are only applied to criminals; people under 21 can be prosecuted for underage drinking, but people over 21 cannot)

4.
So what does discrimination mean in this context? Easier answer: putting some sort of secondary qualification in the law.
5.
So what about things that impact one group more than another?
6.
For example, what about the drinking age? What about truancy laws? These are both age based.
7.
What about maternity leave? These are based on having given birth.
8.
Answer: the government is allowed to pass laws that focus in on one group; if those laws are challenged, those laws fall into a really particular set of standards iii.
Standards of Scrutiny
1.
There are three standards of scrutiny.
2.
The strongest: Strict Scrutiny a.
The law must implicate a “suspect class,” that is a group that has been historically discriminated against and who cannot engage in the political process to protect themselves
(think race laws) b.
There must be a “compelling government interest” c.
The law must be “narrowly tailored” to address this
“compelling government interest” d.
Examples: Loving v. Virginia , 388 U.S. 1 (1967) (holding the anti-miscegenation laws are unconstitutional)
3.
The middle ground: Heightened Scrutiny a.
The law must implicate a “quasi-suspect class,” that is a group that’s pretty hard to define; a group that has been historically discriminated against, but may have the ability to engage in the political process? (think gender laws) b.
There must be an “important government interest” c.
The law must be “closely related” to the “important government interest” d.
Examples: Craig v. Boren , 429 U.S. 190 (1976) (holding that a law providing a higher drinking age for males and a lower drinking age for females was unconstitutional)
4.
The lowest: Rational Basis Review a.
All the other discriminatory laws (no special name for the class) b.
There must be a “legitimate government interest” c.
The law must be “rationally related” to the “legitimate government interest” d.
Most laws that get challenged under this standard are upheld e.
Examples: Armour v. Indianapolis , 566 U.S. ___ (2012)
(holding that a law passed to forgive some taxes for those who chose to pay in installment, but forgiving taxes fo those who paid in full, was constitutional) f.
Narrow exceptions: Rational Basis with Bite

i.
The class is not a suspect or quasi-suspect class, but there’s something else floating in the background… ii.
Think things like disability
(2) Activity and Discussion (case study of Bourke v. Beshear) a.
Explain facts and prepare the single question to be decided in the case: Does the
Fourteenth Amendment require a state to license a marriage between two people? b.
Facts (see handout): i.
Two women attempt to get married in the state of Jefferson ii.
Jefferson has a constitutional provision banning marriage between members of the same sex; because of this, the marriage registrar declines to provide a marriage certificate to the two women iii.
The two women sue, claiming that the Jefferson law is a violation of the
Fourteenth Amendment iv.
The district court in Jefferson holds for the two women; the judge notes that homosexual individuals are a quasi-suspect class, falling under heightened scrutiny; the law fails under this standard v.
The Court of Appeals for the Twelfth Circuit reverses that decision; the judge notes that homosexual individuals are not a quasi-suspect class, and so fall under rational basis review; the law stands under this standard c.
Things to ask when you consider: i.
What level of scrutiny should this fall under? ii.
What is the test under that level of scrutiny? iii.
Does the state law pass that level of scrutiny? Why or why not?
D.
EVALUATION
(1) Students will be evaluated based on their class participation and answers to the questions provided.
E.
ASSIGNMENT
(1) No assignment this week