Substantive Due Process- Sexual Choices

Front 1

Romers v. Evans - Holding

Back 1

Kennedy. Holding: a state cannot deem a class of person a stranger to its laws. A law which nullifies all other laws which protect homosexuals could not possibly have been adopted for any purpose except the bare desire to discriminate. Thus it does not pass rational basis.

Front 2

Romers v. Evans. Why does the court invalidate the law?

Back 2

1. narrow group but broad disability. 2. identifies a class of persons, rather than classification, implies desire to harm. 3. inevitable inference of animus and prejudice towards class. 4. political restructuring burdening a minority. 5. bill of attainer similarity. 6. paradigm equal protection case. 6. sheer breadth not related to state's purpose.

Front 3

Romers v. Evans- Kennedy reasoning

Back 3

SC finds that the amendment is so broad that the justifications put forward are so broad that cannot possibly be the reason for the adoption of it but to discriminate against homosexuals. There is no plausible reason other than discrimination for the law, and that is not a permissible state interest.

Front 4

Bowers v. Hardwick

Back 4

SC upheld the validity of Georgia’s criminal sodomy law. SC found that there was no fundamental right and applied rational basis as it was rationally related to Georgia’s legitimate interest of declaring homosexual sodomy immoral.

Front 5

Bowers v. Hardwick. Reasoning

Back 5

sodomy does not bear any resemblance to right to learn and teach, Piers and Meyer. Right to procreate, Skinner. Right to marriage, Loving. Right to privacy, Griswold. Right to use contraceptives, Eisenhard. Right to abortion, Roe. There is no history and tradition supporting right to sodomy.

Front 6

Bowers v. Hardwick. Defining the right

Back 6

SC found not right to engage in homosexual sodomy. Defining the right narrowly and factual and not broad and general

Front 7

Lawrence. Holding

Back 7

Kennedy found that individual decisions concerning intimate choices are protected under liberty. It applied rational basis with a bite and found that law does not rationally relate to it's objective.

Front 8

Lawrence v. Texas - Kennedy

Back 8

Morality alone is not sufficient. Kennedy lays some factors of significance: privacy intimate association dignity and respect lack of legitimate interest prejudice--no other legitimate interest Collateral consequences---as a practical matter the state is simply making a statement of moral disapproval, and we will not enforce the law.

Front 9

Lawrence- Defining the right

Back 9

Define the right broadly. right to homosexual sodomy is not really declared fundamental right. the Issue in Bowers was not simply about the right to engage in homosexual sodomy. The penalties for these laws touched on the most private human conduct, sexual behavior, and private places.

Front 10

Lawrence- Equal Protection

Back 10

Equal Protection Kennedy refuses to use EP to abolish this law stating that an appropriately statute prohibiting homosexual relationships may survive equal protection, it would violate due process.

Front 11

Lawrence- O'Connor

Back 11

Equal Protection the statute in Bowers presented a different issue. In Bowers the law criminalized sodomy for all individuals, here only punishes homosexual conduct. Texas statute makes homosexuals unequal n the eyes of the law. State’s interest? - promotion of morality Bowers did not hold that moral disapproval of one group is rational basis under EP. The issue is whether the under EP moral disapproval is a legitimate interest state interest to justify bans on homosexual sodomy-- no it’s not, it does not satisfy the rational basis of EP .legal classifications must not be drawn for the purpose of disadvantaging the group burdened.

Front 12

Lawrence v. Bowers

Back 12

Lawrence overruled Bowers but it did not characterize the liberty interest at issue as fundamental right. The court in Bowers characterized the issue as whether the Constitution confers fundamental right upon homesexuals to engage in sodomy, but in Lawrence the Court framed it as whether the laws seek to control personal relationship. Glucksberg required a careful description of the interest of the fundamental interest