Constitutional Law II
Sexual Orientation
Spring 2005
Con Law II
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The Odious Sin of Homosexuality
Leviticus 20:13:

“If a man also lie with mankind, as he lieth
with a woman, both of them have committed
an abomination: they shall surely be put to
death; their blood shall be upon them.”
God destroyed Sodom & Gomorrah for their
inhabitants’ sin, including Sodomy

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St. Thomas Aquinas, Summa Theologiae
(homosexuality was a “sin against nature”)
Pope Gregory IX decreed that homosexuals
should be burned alive
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Con Law II
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The Odious Sin of Homosexuality
Codex Theodosianus (Theodosian Code)
“Iidem aaa. orientio vicario urbis romae. omnes, quibus
flagitii usus est, virile corpus muliebriter constitutum
alieni sexus damnare patientia (nihil enim discretum
videntur habere cum feminis), huius modi scelus
spectante populo flammis vindicibus expiabunt. pp. in
foro traiani viii. id. aug., valentin. a. iv. et neoterio coss.
haec lex interpretatione non indiget” Cod. Theod. 9.7.3
Codex Justinianeus (Justinian Code)
Long Condemned in Western Societies
incl. Nazi germany (purged the gay population)
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Con Law II
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Bowers v. Hardwick
(1986)
Claim:
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Fundamental right of homosexuals to engage in sodomy
Fundamental right of consenting adults to sexual intimacy
Fundamental right of privacy
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Con Law II
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Bowers v. Hardwick
(1986)
Intepretivist methodologies used

White
 Rejects Dynamic (evolutionary development of law)


Existing precedent pertains only to family privacy
Existing precedent should not be extended
 Non-Interpretivism (natural law)

h-sexual sodomy not “implicit in concept of ordered liberty”
or “deeply rooted in this Nation’s history and tradition”
 Broad Textualism (penumbral/first principles)

Can’t be part of “privacy” because no basis to dinstinguish
this from other private conduct (e.g., adultery, incest)
 Narrow Textualism (fixed common law)

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Not recognized as “right” at adoption of 14th amendment
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Bowers v. Hardwick
(1986)
Intepretivist methodologies used

Burger
 Textualism (clause-bound interpretivism)
 Natural law (condemned rather than protected act)

Powell
 Dynamic (for 8th amendment, but not liberty)

Blackmun:
 Broad Textualism (penumbral / 9th Amd)
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“we must analyze [the claim] in light of the values that
underlie the constitutional right to privacy”
sexual orientation “may form part of the very fiber of an
individual’s personality”
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Bowers v. Hardwick
(1986)
Intepretivist methodologies used

Stevens
 DP – Dynamic growth (living constitututionalism)

Non-marital, non-reproductive liberty includes sex intimacy
 EP – fundamental rights strand
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Classification (hetero- vs homosexual) not germane to any
state interest, except animus towards burdened group
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Romer v. Evans
(1996)
Colo. Constitutional Amendment 2

Cities had enacted anti-gay bias laws
 Constitutionally required to do so?
 Constitutionally prohibited from repealing them?


Or must Colo. provide “special rights” to gays?
Does more than repeal; prohibits reenactment
Reitman v. Mulkey / Hunter v. Ericson

State may not erect 2-level political process
 Most persons seeking beneficial laws, can obtain
them from state legislature or city councils
 Racial minorities have to first amend state const’n
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
a higher level of state political processes
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Romer v. Evans
(1996)
Equal access to political process

States do this all the time
 compare raising sales tax to raising property tax
 allocate less money for police vs. for schools
 Imposing different political access routes doesn’t
itself violate EP fundamental right to vote

Reitman/Hunter/Romer line of cases applies
only where burdened party is suspect or quasisuspect class
 Are gays a suspect class?

Indicia of suspectness
 If not, apply RB test
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Con Law II
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Sexual Orientation (reconsidered)
Should law be concerned with the “cause”
of homosexuality?
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Behavioral deviance
Psychological (a “mental disorder”)
Genetic
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Sexual Orientation (reconsidered)
Should law be concerned with the “cause”
of homosexuality?

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Behavioral deviance
Psychological (a “mental disorder”)
Genetic
The Gay Gene
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Romer v. Evans
(1996)
Kennedy’s Equal Protection Approach


Unnecessary to decide whether protected class
Amendment 2 fails rational basis test
State MEANS (classification):

Gays must resort to higher level for protection
 Compare, e.g., pet-protection ordinance
terrible fit
perfect fit
State ENDS:

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Conserve state resources – legitimate
Create legal protection for private biases
 discrimination for discrimination’s sake is always an
impermissible object under EP clause (Cleburne)
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Romer v. Evans
(1996)
State MEANS (classification):

Gays must resort to higher level for protection
State ENDS:

Preserve traditional morals
 If state can criminalize homosexual conduct, can’t it
impose lesser burden, to support traditional values?
Scalia (dissent)


Although wrong that EP invalidation of 2-stage
political access is unheard of, he’s right that
extending it to gays suggests special status
what happened to Bowers?
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Con Law II
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Romer v. Evans
(1996)
What Happened to Bowers?

Severe scholarly criticism of interp. method
 Including narrow & overstated historical analysis
 Notion of distinct “homosexuals” not found in 18th C


J. Powell recanted
European Court of Human Rights
 Dudgeon v. United Kingdom (1983)
 Case of X, Y & Z v. United Kingdom (1997)

Powell v. State (GA S.Ct. 1998)
 Statute violates state const’l right to privacy

Social maturity – acceptance of gays & lesbians
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Lawrence v. Texas
(2003)
Kennedy – Interpretivist methodology


Rejects strict construction (CBI) of Bowers
Dynamic (emerging norms)
 Can DP “liberty” ever include conduct that most
people believe is immoral
Foundations of morality


Religious tenets
Non-religious ethics (philosophical)
 Cateogrical imperative (Kant); Autonomy (J.S.Mill)
 Utilitarianism (Bentham, Smith)

Biology?
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Lawrence v. Texas
(2003)
Conflict between morality & ind. autonomy

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Abstract morality (not based on other state
interests, e.g., health & safety) losing ground
Scalia’s level of specificityconstitutional
(fn. 6) losing ground
Privacy (qua autonomy) rising
to greater level
existentialism?
of generality
 “one’s own concept of existence, of meaning, of the
universe, and of the mystery of human life”
 Has Kennedy become a penumbralist?
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Lawrence v. Texas
(2003)
Morality


analysis
vs. DP
Laws that protectEP
public
sensibilities
DP MEANS (restrictions under challenge)
Laws that
enforce private morality
EP MEANS (classification)
 Aren’t public sensibilities offended by knowledge of
private acts?
O’Connor (concur on EP grounds)

Moral disapproval of homosexual sodomy, but
not heterosexual sodomy, is related only to
state antipathy toward gays.
Overturning Bowers

Why not stare decisis here as in Casey?
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Gay Marriage
Federal Law

1 USC § 7 Definition of "marriage" "spouse"
 In determining the meaning of any [federal law], the
word "marriage" means only a legal union between
one man and one woman as husband and wife, and
the word "spouse" refers only to a person of the
opposite sex who is a husband or a wife.

28 USC § 1738C “Defense of Marriage Act”
 No State, territory, or possession, or Indian tribe,
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shall be required to give effect to any public act,
record, or judicial proceeding of any other State, etc,
respecting a relationship between persons of the
same sex that is treated as a marriage … or a right
or claim arising from
relationship.
Con Lawsuch
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Gay Marriage
Opinions of the Justices (2004)

Proposed Senate bill prohibiting same-sex
marriage violates Mass. EP and DP rights
 Article 1, Mass. Declaration of Rights

"All people are born free and equal and have certain
natural, essential and unalienable rights; among which
may be reckoned the right of enjoying and defending their
lives and liberties… Equality under the law shall not be
denied or abridged because of sex, race, color, creed or
national origin."
 Article 10, Mass. Declaration of Rights
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"Each individual of the society has a right to be protected
by it in the enjoyment of his life, liberty and property,
according to standing laws. . . ."
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Gay Marriage
In re Marriage Cases (Cal. Superior Ct. 2005)

Cal. Const. Art. I, § 7:
 “A person may not be deprived of life, liberty, or
property without due process of law or denied equal
protection of the laws; provided that nothing
contained herein shall [require busing beyond that
required by the 14th Amendment to the US const.”]

Strict scrutiny because marriage prohibition
depends upon gender (SS under Cal. Const)
 See Loving v. Virginia

Also because marriage is a fundamental right
 Ct. rejects interpretation that defines right by the
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very law designed
to curtail it
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Gay Marriage
In re Marriage Cases (Cal. Superior Ct. 2005)

Cal. Family Code § 300 fails Rational Basis
 State ENDS

Promotes traditional values “tradition” not by itself a
legitimate state interest


State already grants some “separate but equal” not
marriage-like rights to gays a legitimate interest
Promote procreation
 State MEANS
(classification)
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legitimate state interest
Class is under & overinclusive; hetereosexual
couples don’t want children allowed to marry
21
Roper v. Simmons
(2005)
Constitutionality of death penalty for minors

“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”
Background –methodology in 8th Amd cases
Textualism – these terms are expansive, not fixed
 Original Intent - Framers probably sought to prohibit

barbaric methods of punishment

Dynamic - Evolving standards of decency that mark
the progress of a maturing society

Non-Interp. –
Int’l practices; social, scientific, economic,
religious, philosophical, and personal values; natural rights
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Roper v. Simmons
(2005)
Dynamic - Evolving standards of decency
that mark the progress of maturing society

Practices in American states (national consensus)
 Guards against outliers
 Also, other nations that share our Anglo-Am. heritage


Atkins v. VA (2002) overruling Penry v. Lynaugt
Trends are relevant to this const’l methodology
External values
Scientific (psychology) evidence
 Deterrence vs. retribution
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Roper v. Simmons
(2005)
External Values - International law

But, “United States is the only country in the
world that continues to give official sanction to
the juvenile death penalty.”
 Pres. Bush’s “Reservation” under Treaty of Civil and
Political Rights regarding Article 6(5), prohibiting
execution of juveniles
 United Nations Convention on the Rights of the Child
prohibits capital punishment for juveniles

But not ratified by US (or Somalia)
Customary International Law
 Scalia’s remarks to Woodrow Wilson Center
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