romer v evans: the story by the national legal foundation
TRANSCRIPT
Romer v Evans:The story by the National Legal Foundation
Suzanne Goldberg: Lambda attorney; counsel in Romer
Most Constitutionally Vulnerable?
• Exclusion from US Armed Forces 21
• Only homo sodomy is criminalized 38
• Only homo solicitation is criminalized 33
• Exclusion from opp’ty to adopt children 11
• Exclusion from city’s police/firefighters 23
• Exclusion from legal marriage and its consequences 15
Bases for constitutional Claims
• Equal Protection
• Due Process
Rational Basis
• High deference to state re– Interest– “fit”
• Economic and social legislation– Physicians v chiropractors
• Almost always upheld, but see– Reed– Romer
Strict Scrutiny
• Law must be necessary to a compelling state interest
• Race
Intermediate Scrutiny
• Law must be substantially related to an important government interest
• (VMI formulation): justification must be “exceedingly persuasive”
• Sex/Gender
Choosing a level of scrutiny
• Classification– Treat likes alike– Conduct (modern) not status criteria– Exclude use of prejudice
• Class– Exclude use of subordination– Rawls/ “veil of ignorance”– Avoid conflict of organized social groups– Carolene-products
• Discrete and insular minorities/ lack of political power
• Fundamental Interest??
Due Process: Interest protected by Substantive
DP?• Importance to individual?
• Part of a “right of privacy”?
• Link to specific constitutional rights?– Fourth Amendment– First Amendment
• Deeply rooted in history and tradition?
• Implicit in the concept of ordered liberty?
Balancing State Interests
• Level of scrutiny
• What state interests advanced by law?– Legitimate?– How important?– “Fit” between law and interest
• Overinclusiveness and underinclusiveness
Key precedents re sexual orientation
• Hardwick
• Romer
Gender, Sex, Sexual Orientation
• What qualities do gays/lesbians have?– Dress– Self-presentation?– Activities– Cultural Interests
Gender, Sex, Sexual Orientation
• Gender expectations and children?– Dress– Self-presentation?– Activities– Cultural Interests
Homophobic Language??
Ninia Baehr & Genora Dancel