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Guest Post: A Quick Guide to Sexual Orientation Law

July 9, 2009

As Massachusetts files a challenge to the Defense of Marriage Act, (and John Kerry comes out supporting the challenge) we’re lucky to have a two part series on current law as it relates to the issue of sexual orientation.  Joining us for this two post special is Mike, a second-year law student.  The first part (below) is background on the case law and precedent that would be most relevant to a challenge to DOMA.  The second post will be specifically on DOMA and how it is likely to be argued.  Enjoy!

Two weeks ago (June 26th) marked the six-year anniversary of the Lawrence v. Texas (539 U.S. 558) decision, a landmark case for gay rights in the United States.  As a reminder of that decision, and to really understand the law behind and surrounding DOMA a here is a quick Constitutional Law primer.

The Supreme Court has created constitutionality tests for laws that govern specific groups of people (or “classes”), and specific rights (or “fundamental liberty interests”).  Often these classes are defined by characteristics, which delineate groups such as race, gender, or sexual orientation.  The tests typically fall into two categories, strict scrutiny and rational basis.  Strict scrutiny requires a higher level of justification to rule that a law discriminates against one class of people, and cases that call for a strict scrutiny review are often deemed unconstitutional.  Rational basis grants extensive leeway to lawmakers as long as the law serves a “legitimate state interest;” therefore, these laws are often considered constitutional.  Typically which standard of review the court decides to use determines the outcome of the case.  Although the court has sometimes employed an intermediate scrutiny that falls between rational basis and strict scrutiny, the Court has been reluctant and vague in defining it.

If the court determines a specific right (i.e. the right to privacy) as a “fundamental liberty interest” the court applies strict scrutiny, and if not, rational basis review.  When dealing with a “class” of people, the court has sifted out different groups for different tests.  Laws involving race, religion, or national origin receive strict scrutiny while laws dealing with gender receive intermediate scrutiny.  To determine whether a group should receive strict scrutiny the court looks to if the group is 1) “discrete” or “insular” minority with 2) an immutable trait and has a 3) shared history or discrimination and 4) lack the political power to protect themselves.

When it comes to sexual orientation, the Court has been all over the map.  In 1986, in Bowers v. Hardwick (478 U.S. 186), the court defined the right to homosexual sodomy.  The court said this was not a “fundamental liberty interest” and upheld the law banning it because the state’s regulation of morality was a rational basis for the law.  Ten years later in Romer v. Evans (517 U.S. 620) the court struck down a Colorado law, which made it illegal for municipalities to offer special protections to sexual orientation.  In his opinion, Justice Kennedy signaled a change in the courts attitude towards homosexuals and seemed almost appalled by the law.  Romer though, left the question of sexual orientation as a class up in the air.  It appeared that Kennedy had used a heightened and tougher rational basis review to strike down the law without overturning Bowers.  This approach was unorthodox and left the issue of sexual orientation as vague and ambiguous.

Finally in 2003, Kennedy, again writing for majority, overturned the Bowers ruling in the Lawrence decision.  The Court said that adult, consensual, intimate conduct was protected and hinted that morality was no longer a legitimate state interest.  Again a heightened rational basis review was used but at the same time conspicuously avoiding the language of a “class” or of a “fundamental liberty interest”.  This approach prompted Justice Scalia in dissent to note, this was “an unheard-of form of rational-basis review that will have far-reaching implications.”  Regardless, it signaled an increase in protection for sexual orientation under the Constitution.  Kennedy was cautious though, and backed away from legitimizing gay marriage specifically.

Perhaps more curious was Justice O’Connor’s concurrence (essentially a second opinion which doesn’t carry the legal weight of the decision of the majority), which looked at sexual orientation as a class and cast some doubt on laws that differentiate between heterosexuals and homosexuals.  Despite this, O’Conner too stated that if the protecting traditional marriage would pass a rational basis review.  Still, it was this argument made by O’Conner that was expanded in the recent Iowa decision to legalize same-sex marriage.

Part 2 continues here…

A special thank you shout-out to Steve, second year law student #2.

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