5/5/10 1:41 PM But, even actual differences (see slides) Equality? Formal? Substantive? So? What about sex segregated education? Case cannot prohibit all sex segregated schools of the public kind Difference problem to what the world encounters, what is best for their child A lot of private schools integrated in the 1970s. Now people think maybe there is a difference, do you reinforce it by educational services. Does separate restrooms e Devieance? Crimes against nature: sexual acts that are non-marital and non-procreative. Focus on Acts Shifts to docus on identities: Who is doing the acts more important than what they are doing Focus on state relation was the activity. About nature. Past 50 years there has been a shift away from acts, to foucs on identity. 50s and 60s an increase of manesfestation for victimless crimes, move state by state of regulating these kinds of activiites where arguably there was no victim, occurred in private between consenting adults Many states in the 70s revised their criminal codes. Simply eliminated the states regulation of crimes against nature ?sodomy laws? and with it ?bestiality laws? Washington through out the stature, recently had to E.G., Legislative Reorm Montana in the 1970s: From crmes against nature to deviate sexual relations (sexual contact of sexual intercourse between two persons of the same sex or any form of sexual intercourse with an animal) Other forms of sex okay Bowers v. Hardwick In 1986, court said such prohibitions did not violate the constitutional protection given to privacy. Court asked itself whether there was a fundamental right to homosexual sodomy. Police came for parking tickets, went to his room Is there a fundamental right to homosexual sodomy Implicit in the concept of ordered liberty? Deeply rooted in our nation?s history and tradition? Majority in Hardwick: Aid the majority can disapproval of homosexuality Dissent! Not the question if there is a fundamental right to homosexuality. Asked a different question: Does the right to privacy encompass the right of an adult individual to enage in consensual sexual relations without state interference? )the statute punished all kinds of acts, not just when committed by homosexuals.? Don?t we have a right to be left alone in this regard? Boundary between us and individuals should be protected. Is there a fundamental right to privacy, broad enough to encompass this sexuality Thus is a fundamental right. Lawrence v. Texas In 2003, the Supreme Court overruled Bowers v. Hardwick. By striking down Lawrence v. Texas. Opinion by Justice Kennedy (7-2). He also wrote Romer v. Evans. Question presented: Not whether there is a fundamental right to a certain kind of sexual activity by a certain kind of person, but whether people have the right to make certain kinds o identity-defining, life coure determining decisions without state interference. Made it an identity not about the act. From Casey (abortion case): ?These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14th Amendment. At the heart of liberty is the right to define one?s own concept of existence, of meaning, (see slides) The Nation?s laws and traditions in the past hald century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.? Well, what about marriage? Justice Kennedy says no: the present case ?does no involve whether the government must give formal (slide) Same result, different reasons Justice O;Connor, who concurred Texas cannot assert any legitimate state interest here, such as a national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relaitons?asserted state interest in this case?other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded roup! Dissent! Justice Scalia: First, the question should still be whether there is a fundamental right to engage in homosexual sodomy. Doesn?t like the broader framing. Second, he thinks the court is taking sides in culture war again, as in Romer, calling the corut?s opinion a ?product of law-profession culture that has largely signed onto a homosexual agenda. (Says Marriage is next?slides) Who is right? Is there a constitutional right to same-sex marriage? Or in here a constitutional right to marry, to which same-sex couples entitles? Long History Since the 197s, lesbian and gay couples have sought the right to marry Lost in the 1970s (jones v. Hallahan, Singer v. Hara, ect.) Lots of challenges to the status quo at that time. Second try in 1990s Seom initial success (e.g., Baehr v. Lewin, in Hawaii) Is it okay for Hawaii to discriminated on same-sex marriage? What followed was statutes and consititutional laws that were in defense of marriage DOMA Federal Defense of Marriage Act: for all federal purposes, marriage is the union of man and a woman. So, for tax, social security, immigration, and 1200 + laws. And states do not have to recognize same-sex marriages even if validly formed in other states (This clause is the subject of debate over the meaning of Full Fath and Credit)/ Full Faith and Credit Article IV of the constitution required states to give full faith and credit to acts and special proceedings of other states. We won?t know until the supreme court tells us if this means same-sex marriage. Full Faith and Credit, if you move to a different state you don?t need to get a new Drivers License or new marriage In Oaklahoma, said that even though the g States have passed DOMAs Since Baehr v. Lewin, more than 40 states have passed similar prohibitions, including Washington. Five states and the D.C. have extended marriage to same-sex couples. Three others will recognize such marriages. (Get married in a different state, your marriage is recognized Four states have extended similar statuses (civil unions, domestic partnerships, Washington, Caliornia, Oregon, Nevada). Four more states extend limited benefits. Who can marry? The arguments for? (see slides) Why marriage anyway? What is the state?s reason for regulating persona lives in the way marriage does? If the state regulates, hten how does it decide who gets in? What limits the state in deciding who gets in? Who can marry? The arguments for: Fundamental right to marry?That it is a constitutional right to marry Equality (sex equality)?ERAmendment for any sex based qualifications. Nina Baehr, not letting me marry because my partner is female, same sex, You can marry a man but not a woman Equality (sexual orientation equality) Violating equality based on 5/5/10 1:41 PM 5/5/10 1:41 PM
Want to see the other 6 page(s) in WomeninLawMay5th.docx?JOIN TODAY FOR FREE!