Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 5

Gay Marriage

• Lawrence v. Texas: fundamental right to engage in homosexual conduct is not deeply rooted but Court bases its holding to strike down law outlawing homosexual sex based on sexual autonomy
  • Vague approach, Wallace hates it
  • Court doesn’t even ID level of scrutiny, but seems to apply strict
• Windsor: (EQUAL PROTECTION ANIMUS) ballot vote (Defense of Marriage Act) repealed gay aniti-discrimination laws → held unconstitutional
  • Initially invoked federalism (states prerogative to define marriage) but ultimately did not base decision on it ➡
  • Applied heightened scrutiny, but did not find fundamental right to marry for same-sex couples ➡
  • Suggested that DOMA was motivated by animus—a “bare desire to harm” gays; held that the purpose of DOMA was to “disparage” and “injure” those in lawful same-sex marriages
  • Essentially tees up issue of gay marriage
• Post-Windsor: 3 ways to argue against same sex marriage laws
  • Substantive due process (find fundamental right to same sex marriage, apply strict scrutiny)
    • Loving and fundamental right to marry
    • But, could be to general in defining the fundamental right (right to marry who?) right to marry someone of same sex
    • Same sex marriage deeply rooted in history and tradition?
      • No
  • Equal Protection
    • Classification: sex or sexual orientation
    • Scrutiny: Apply heightened or rational basis
    • State’s interest?
      • Encouraging the raising of children in stable family environments
    • Problems?
      • Scotus unwilling (so far) to give strict scrutiny to sexual orientation discrimination
    • Hold that state interests do not justify discrimination by bans on same sex marriage
      • State interest is not about religious concepts → about stable family environment raising children
  • Animus: overturn bans on same sex marriage as motivated by unconstitutional animus
    • Animus is adjunct to rational basis scrutiny…under E.P. doctrine, one way to prove law fails rational basis is to prove that it is motivated by animus
    • Romer and Windsor
    • If there is “animus,” the law fails
    • Need to look toward the actual motivations of the law, and not give reasons
• Obergefell
  • Due process- Gay marriage as fundamental right? Court finds fundamental right to dignity (includes fund. Right to gay marriage)
  • Problems:
    • Loving was fundamental right to marry another regardless of race
    • But Glucksberg specificity rule → right to marry vs. right to marry person of same sex? Court dodges this, creates alternative path (seems like fund. Rights can change)
      • Right to gay marriage is definitely not rooted in history and tradition
        • Note: No proponent of SSM argues that people who adopted the 14th Am understood it to require states to change the definition of traditional marriage
      • Broad fundamental right to marriage is problematic
        • Think polygamy, etc.
    • Why fundamental right to marry applies to same sex couples:
      • Choice to marry is inherent in individual autonomy and dignity
        • Liberty to “define and express one’s identity”
      • Marriage is “two person” union unique in its importance
      • Protects children of gay couples from thinking stigma of their families are somehow lesser
      • Demeans gays to be locked out of keystone institution of our nation’s social order
      • (in sum- denying gay couples right to marry would “disparage their choices” and “diminish their personhood”)
    • Where do we draw line when deducing a fundamental right from abstract concepts of personal autonomy and dignity rather than anchoring it to constitutional text, history, and traditions concerning marriage
  • Equal Protection? (main holding)
    • Classification is sexual orientation (not sex) → should just apply RB
      • State interests are
        1. Encouraging the raising of children in stable family environments by steering biologically procreative relationships into enduring marriage relationships
        2. Preserving the stability, uniformity, and continuity of laws and social norms linked to the historical and “deeply rooted” meaning of marriage in the face of ongoing public and political debate and social experimentation on the nature and role of marriage
        3. . Moral disapproval of non-traditional forms of marriage
    • Court still says irrational under RB (even though traditional structure of marriage has survived for millenia -Wallace)
      • Mainly based on animus, ANIMUS IS ONLY FOR EP!!!
      • Animus now found in
        1. wide-ranging and novel deprivation upon disfavored group (Romer) or
        2. laws that deviate from traditional territory of lawmaking body to deny privileges to disfavored group (Windsor)

EP and SDP Summary

• Equal Protection
  1. Analysis: Determine classification (e.g., race, gender) and apply appropriate level of scrutiny (e.g., strict, intermediate, rational basis)
  2. Know: How SCOTUS has treated past classifications, including rational basis “with a bite” and when strict scrutiny has been satisfied, and the animus exception
  3. Problems: Higher scrutiny for existing classifications, new classifications (sexual orientation, gender identity), applying animus doctrine
     1. (animus does not require suspect class)

Substantive Due Process (see chart):

1. Analysis: Determine if right infringed is fundamental (test?) and apply appropriate level of scrutiny (e.g., strict or rational basis)
   1. what is the right?
      1. Fundamental? Apply both strands
   2. has it been infringed?
   3. apply level of scrutiny
2. Know: What unenumerated fundamental rights SCOTUS already has identified (e.g., right to parental control over children’s education, contraceptives, abortion, private sexual conduct) and its expansion of fundamental rights to include dignitary harm (gay marriage)
3. Problems: How to identify a “fundamental right,” justices using SDP to impose own political or social views
   • Be able to apply both strands of SDP for exam
     • Glucksberg: (1) define the right specifically and (2) determine if right is “deeply rooted” in nation’s history and tradition
     • Obergefell: Liberty includes the right to dignity, protecting one’s right to personal autonomy to define and express their identity.
       • No set formula