Evans v. Romer
Antiquity, Modernity, Expert
Testimony
1
How far have we come? (clip)
How far have we come?

pretty far (since milk)


still divided
hard to answer

depends on
situation/context




differential changes
variable: issues of
openness
suggestion of change

right direction not there

is there one, universal
goal?
 us society

anc soc have had more
defined protocols
nj gov – forced to resign

sexuality issues or
other?
3
Agenda

Sex and the State


Finnis versus Nussbaum


Evans v. Romer: Case and Case-Law
Dissonant Harmony?
Paper 2

What Sorts of Evidence? What Kinds of
Arguments?
4
Sex and the State
Evans v. Romer: Case and CaseLaw
5
Bowers v. Hardwick (1986)

Supreme Court Case
 Sodomy law upheld
“To hold that the act of homosexual
sodomy is somehow protected as a
fundamental right would be to cast
aside millennia of moral teaching”
(Chief Justice Warren Burger)
6
Colorado Amendment 2 (1992)

Outlawing…


pro-gay/bi legislation
Denying…

sexual minority rights
recognition
7
Challenge: Evans v. Romer

Plaintiffs
Richard G. Evans
 John Miller
 Priscilla Inkpen
 et al.


Defendants
Gov. Roy Romer
 state of Colo.
 state attorney general

8
Federal Appeal…

Struck down (5/21/1996)


14th amendment (equal
protection)
Scalia dissent…

Amendment 2 as “modest
attempt ... to preserve
traditional sexual mores
against the efforts of a
politically powerful
minority”
9
Aftermath…

Lawrence v. Texas (2003)


Overturns Bowers v. Hardwick
Same-sex marriage

Legalized
Massachusetts
 Connecticut
 California


Outlawed
Arizona
 California (Proposition 8, 2008)

10
Finnis versus Nussbaum
Dissonant Harmony?
11
What do they say? What say you?

Finnis, “Law, Morality, and
‘Sexual Orientation’ ”
 Notre Dame Law Review 69.5
(1994) 1049–76

Nussbaum, “Platonic Love and
Colorado Law: The Relevance of
Ancient Greek Norms to Modern
Sexual Controversies”
 Virginia Law Review 80.7
(1994) 1515–1652
12
What say they/you? (disc.)
What say they/you?...
Finnis/Nussbaum
1.
diverge/clash on

f: const. n: not

2 diff interpretations of anc cult, but
similar sources

f: anc trad hostile

n suggests pluralistic sexuality
using the ar myth

f: smep. n: questions the “smep”
thing
1.
concur on

state cannot/should not criminalize
homosexuality
Finnis
3.
strengths

n’s misquoting – n as tendentious

d not all n’s
4.


weaknesses
no insight, more polemical
one dimensional use of anc texts

unnuanced use fo texts
Nussbaum
5.
strengths

3-dimensional approach

uses f’s evidence against

more in-depth
6.
weaknesses

not too many weakness (maybe
read too much into texts)

IS trying to be careful
14
Paper 2
What Sorts of Evidence? What
Kinds of Arguments?
15
Paper 2: Arguments? Evidence?
16