Sexual Orientation & the Law Outline

Sexual Intimacy & Substantive Due Process

State v. Rhinehart (Wash. 1967): Rhinehart charged with sodomy after he picked up a 16-year-old. Police found pictures of men in his home.

  • Court views the photos as evidence of homosexuality
  • However, the statute makes sodomy illegal, not homosexuality!
  • What kind of evidence to be support sodomy conviction?
  • Acts for which you could find evidence to get conviction are acts that would be criminalized under other criminal statutes (ex: prostitution, sex in public, etc.)
  • Testimony tends to be unreliable
  • Only reason you’d admit it is if you were getting a deal

Wainwright v. Stone (U.S. 1973): Question about whether a sodomy statute is void for vagueness

  • Court looks to previous statutes, and says that courts have long held this type of behavior illegal—“everyone knows”

What is the effect of criminalization of sex acts as to how people will go about engaging in them?

  • Going to push the search for these acts underground
  • Secretive (from authority, but known to people who would be receptive)—leads to: Code, Odd location, Pushes people towards prostitution

Bowers v. Hardwick (U.S. 1986): Police give Hardwick a ticket for drinking on the street outside a gay bar—then go inside his house and see him engage in sex act

  • Court says there is no fundamental right to engage in homosexual sex acts
  • Fundamental right = deeply rooted in nation’s history
  • Court says that because the history thinks homosexuality is unmoral, it’s not up to the courts to go the other way
  • (ironic because everything started out as a “minority” opinion)

Lawrence v. Texas (U.S. 2003): Lawrence arrested for sodomy; court overturns Bowers

  • Majority decides this using due process analysis, but never says there is a fundamental right to anything, so hard to use this case going forward
  • Probably just saying it doesn’t pass the rational basis test
  • There must be some protection in the 14th amendment for privacy, but we don’t know how far it goes
  • The desire to impose society’s morals on the public is NOT enough of a rationale
  • Scalia worries about slippery slope argument—by not limiting decision to specifically sodomy, they could open the door to gay marriage!
  • What is this case about?
  • (1) No morality based legislation.
  • (2) No laws that single people out based on sexual orientation.
  • (3) No laws prohibiting consensual sexual activity between adults.

Williams v. Atty. Gen. of Alabama (11th Cir. 2004): Ban on sex toys upheld

  • Court says no fundamental right to sex toys!
  • Majority distinguishes this case from Lawrence—says there is no privacy right to buy sex toys!

Equal Protection

Levels of scrutiny

  • Heightened
  • “fundamental rights”
  • race, sex, gender, etc. = “suspect classes”
  • litigation burden on respondent
  • Rational basis review
  • Everything else
  • Litigation burden on citizen (challenger)
  • Law is likely to be upheld unless it is suspect class or recognized fundamental right
  • Pretty much anything has some rational explanation
  • Gays do not equal suspect class, so they’re going to be up for rational basis revoew

Watkins v. U.S. Army (9th Cir. 1988):Watkins is let go from the army after a new regulation is enacted outlawing homosexuals (no problems before)—Court says this is discrimination and is not okay

  • This case is after Bowers but before Lawrence
  • This is an equal protection case because it is about status (who he is) not conduct (what he does)
  • Distinguishes this case from Bowers because Bowers was about conduct and this is status
  • The 9th circuit said that sexual orientation should be a suspect class (because they’re discriminating against status not conduct), but this decision was eventually VACATED—army regulation upheld

Romer v. Evans (U.S. 1996): Certain places in Colorado (liberal places like Aspen and Boulder) pass pro-gay litigation. In response, state of CO passes Amendment saying homosexuals have no protected status

  • Court responds that you can’t discriminate against people just out of animosity
  • No fit between the means and whatever state interest is at play
  • Takes one trait about people and denies protection across the board—some protections have nothing to do with trait
  • Scalia dissent says Bowers criminalizes conduct, so you should be able to disapprove of conduct
  • Scalia doesn’t really think this is discrimination/animosity—just taking away preferential treatment, putting everyone on same level
  • “Mistaking kulturkamf for a fit of spite”

Irizarry v. Bd. of Ed. of City of Chicago (7th Cir. 2001): Board of ed provided health benefits for same-sex “domestic partners,” (any same-sex couple that live together) but not opposite-sex couples who live together.

  • Two arguments:
  • (1) City argues that heterosexuals “don’t need it”—they can get married
  • Response: gays can get married too (just not in same-sex couples)
  • City says there is a need for these benefits—gays need it
  • (2) City wants to attract gay teachers to provide more support for gay students
  • Rational basis test only says law has to be reasonably related to these goals! Definitely is.
  • Problem with equal protection challenge—the line could move down so no one gets the benefit (as opposed to line move up so everyone gets it)

Lawrence v. Texas (U.S. 2003) (O'Connor concurring) and (Scalia dissenting): O’Connor argues there is an equal protectio.n basis for deciding the case

  • No other justices join in her opinion—why?
  • The majority is afraid that the legislature will just outlaw sodomy altogether
  • Normal rule in constitutional issues is you don’t decide more than you have to when you are deciding whether a law is valid or invalid

Equal Protection In School

Nabozny v. Podlesny (7th Cir. 1996): Student is constantly getting beaten up by other students because he’s gay, school does nothing

  • Nabozny has two claims:
  • (1) Gender/sex: if girls had been beaten up by boys, school would have reacted differently
  • (2) Sexual orientation: school didn’t do anything because he was gay – violates equal protection, even in rational basis world
  • Court concludes that there is evidence that would allow a jury to believe that the school discriminated against him
  • 6th circuit said because sexual orientation is not an identifiable class on sight, then they don’t have protection, but the 7th circuit said that you wouldn’t choose to be gay, and that it is genetic.

Schroeder v. Hamilton School Dist. (7th Cir. 2002): Teacher is getting harassed by students for being gay, is upset that the school’s anti-harassment policy doesn’t include sexual orientation as a protected group

  • 7th circuit 3-judge panel
  • Mannion writes the opinion: says it is permissible for government employer to decide which prejudices to devote more resources to stop
  • Posner concurs
  • Wood dissents—says this should be considered like Romer and Nabozny

The First Amendment In School

Gay Students Org. of Univ. of N.H. v. Bonner (1st Cir. 1974): Gay students want to have a play, university says they can put on the play but can’t have social function

  • Court says this is not okay—they have a First Amendment Freedom of Speech
  • They can’t distinguish based on conduct
  • First amendment = heightened scrutiny—government has to show “important government interest”

Equality Foundation of Greater Cincinnati v. City of Cincinnati (6th Cir. 1997):City charter prohibiting protection for homosexuals (just like Romer)

  • Here the 6th circuit says it’s okay—there is a rational basis—they’re conserving resources to combat other types of discrimination

Gay Alliance of Students v. Matthews (4th Cir. 1976): Gay organization wanted to register as student organization

  • Court says yes—this is first amendment right—school has to allocate funding equally without regard to content of message

The First Amendment & Association

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (U.S. 1995): Veterans Council doesn’t let gay group march in St. Patrick’s Day parade

  • There was a Massachusetts anti-discrimination statute, but because this wasn’t technically government-sponsored, it supposedly didn’t apply
  • Court says part of first amendment is freedom from compelled speech—if the parade is forced to include the gay group, it will look like they’re pro-gay

Boy Scouts of America v. Dale (U.S. 2000): Boy Scouts fire scout leader when he comes out very publicly as gay

  • Law says “public accommodations” (restaurants, hotels, etc.) can’t discriminate based on sexual orientation
  • Court said this group wasn’t a public accommodation
  • A group with a specific agenda isn’t public—question becomes whether the group has an agenda
  • Same as parade—court says they don’t have to include someone who they don’t agree with because it will look like they support them
  • Question is—does just being gay send a message—what if he never talks about it? (Like parade—what if they don’t hold up pro-gay signs.)
  • This case went 5-4 (unlike Hurley, which was unanimous)—they disagreed whether this was the same as Hurley—maybe just being gay is not as “expressive” as the parade
  • The Boys Scouts didn’t before have a specific anti-gay agenda, so there’s no evidence that he is against their message
  • Maybe organizations shouldn’t have to come up with their position on every single issue beforehand—the court should believe them on what they say they believe

Public Employment

Norton v. Macy (D.C. Cir. 1969): Norton was discharged from NASA because of homosexuality activity (he was cruising for boys), but he said he wasn’t gay

  • Congress says govt employees can’t be fired unless there is cause affecting efficiency of service
  • Court finds for him because they said there is no relationship btw the evidence against him and the efficiency of service
  • This case makes a slippery slope argument—if the employer can fire someone every time he does anything “immoral,” where is the line? Everyone does immoral things sometime.
  • If the statute says you can’t fire someone for being gay, NASA can argue:
  • (1) he’s not actually gay (he won’t admit it)
  • (2) someone could blackmail him—he has vulnerabilities that could affect his job
  • (3) they’re actually firing him because of the arrest
  • (4) they’re firing him because of the embarrassment (if the govt found out, they could cut their funding)

McConnell v. Anderson (8th Cir. 1971): McConnell offered job as head librarian at univeristy, then job offer withdrawn after he applied for gay marriage license

  • Court says this is okay—can reasonably conclude this wouldn’t be good for the university
  • Difference btw this case and previous:
  • About conduct not status—they knew he was gay before
  • He was much more publicly out—more embarrassing
  • They warned him not to get the marriage license—he did it anyway

Glover v. Williamsburg School District (S.D. Ohio 1998): Teacher’s contract was not renewed because he was gay (his boyfriend would come by to the school and there was a (false) rumor they held hands at a school event, and also they were in an interracial relationship. Meanwhile another white heterosexual teacher whose contract was also not renewed successfully appealed

  • Court said that because they asked her back and not him, it was clearly pretextual
  • Had they fired both of them, he would have no case
  • They knew he was gay when they hired him

Employment, Sexual Orientation & Gender Identity

DeSantis v. Pacific Telephone & Telegraph Co. (9th Cir. 1979): General group of homosexual people who claim that they were discriminated against bc of their homosexuality. Claim is under Title VII (which says you can’t discriminate because of “sex”)

  • Court says there is no Title VII claim because Congress did not include sexual orientation when they drafted Title VII
  • People have proposed amendments to include sexual orientation and they have NOT been enacted
  • They try to argue male homosexuals are unfairly impacted, but court says you can’t make Title VII claim that’s really about sexual orientation

Oncale v. Sundowner Offshore Servs. Inc. (U.S. 1998): Straight guy on an all-male oil rig crew arguing that he was being harassed and this was against Title VII

  • Scalia opinion: Nothing in Title VII bars a claim of discrimination by someone of the same sex
  • They didn’t specifically address this case, just said someone like him could bring such a claim under Title VII
  • Thomas concurrence: still has to be harassment on the basis of sex!

Ulane v. Eastern Airlines Inc. (7th Cir. 1984): Transgender pilot fired—says she was discriminated against because she was a woman (violates Title VII)

  • Court says NO—she was discriminated against because she was transgender, not a woman—this is not protected under Title VII

Smith v. City of Salem, Ohio (6th Cir. 2004): Transgender firefighter begins acting more feminine—make him take psychological evaluation, etc.

  • Court goes the other way than Ulane—cites Pricewaterhouse case (woman told she wasn’t feminine enough bc she wouldn’t wear makeup, etc.) and says that this is gender “stereotyping,” which is not allowed under Title VII

Barnes v. City of Cincinnati (6th Cir. 2005): Transgender cop wasn’t given promotion because he didn’t have “command presence”

  • Court finds for Barnes—says the city discriminated against him because of his failure to conform with gender sterotypes

Rene v. MGM Grand Hotel (9th Cir. 2002): Rene is butler at MGM Grand fancy high roller floor with all male staff where they harass him for being gay

  • Court says he can make Title VII claim—it’s gender stereotyping (expecting a man to act a certain way)
  • Is this harassment based on sexual orientation or sex? Would it completely stop once Rene is taken out? (No, they’ll find the next most effeminate guy.)
  • Not Title VII if it’s person-based, not sex-based (if they were just really into him, that doesn’t count.)

Transgender Civil Rights

In the Matter of Anonymous (N.Y. 1968): Transgender person wants to change name and gender on birth certificate

  • Court lets her
  • Transition must be “complete” to qualify

Anonymous v. Mellon (N.Y. 1977): Transgender person wants to change name and gender on birth certificate

  • Court says she can change her name but not gender—birth certificate is a state document
  • What does birth certificate do?
  • Historical document or present document?
  • If it’s historical, doesn’t really matter, but if it’s present, it’s inaccurate if it can’t be changed
  • If it has a current function, you have to measure how important the function is.

In re Harris (Penn. 1997): Transgender person wants name change (but hasn’t has full surgery)

  • Majority says “demonstrated commitment” to new gender is enough
  • Dissent wants her to have had the surgery first

Richards v. U.S. Tennis Ass'n (N.Y. 1977): Richards was very successful tennis player as a man, then had sex change, started playing tennis as a woman. Richards was prevented from participating in U.S. Open because she would have failed “Barr Body” test—based on chromosomes

  • The court bases this on sex discrimination, and says she should be allowed to play
  • All the doctors testify that her body and muscle mass are within female norm

Marriage

Baehr v. Lewin (Haw. 1993): Gay marriage case in Hawaii

  • Two questions:
  • (1) Do same-sex couples have a “fundamental” right to marriage? (Due process)
  • Court says NO
  • (2) Do same-sex couples have an equal protection right to marriage?
  • Court says this is discrimination on the basis of sex!—Strict scrutiny under Hawaii equal protection statute
  • Cites Loving to say that this is sex discrimination even though it supposedly treats men and women the same (both can’t enter same-sex marriages)
  • Eventually the court said that the state did have a compelling interest in banning gay marriage, so they never had it

Goodridge v. Dept. of Public Health (Mass. 2003): Massachusetts case that allowed gay marriage

  • Decided on due process grounds and said there was no rational basis
  • Do NOT say there is a fundamental right to gay marriage!
  • Response to argument that homosexuality is immoral—this is rational basis to prevent same-sex marriage
  • Response = the state has already decided you can’t discriminate on the basis of sexual orientation!
  • Problem: this means that any anti-discrimination statute can be shown to be a “slippery slope” towards marriage

Hernandez v. Robles (N.Y. 2006): New York gay marriage case

  • Court says there is a rational basis to oppose gay marriage
  • (1) we want to create an inducement to marriage for people who can “accidentally” have kids (heteros)
  • (2) children should have a mother and a father
  • Like Schroeder—court can say that they can use resources to try to get heteros to marry and don’t have to induce gays to marry

Civil Unions

Lewis v. Harris (N.J. 2006): Court says there is no fundamental right for gays to marry, but the court says the legislature can set up a parallel statutory structure giving them the benefits (civil unions!)

  • Approached the marriage question in a different way—didn’t focus on status, but on benefits
  • All kinds of other benefits with marriage that are for the benefit of kids

State Constitutional Amendments

Ohio Constitution, Article XV § 11:

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

Michigan Constitution, Article I, § 25:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

Adoption