AP U.S. Government & Politics Friday, April 27, 2018

Scotus cases quiz

LGBT Rights from bowers to obergefell (and beyond)

Equal Protection or Substantive Due Process? The Court has alternated in their analyses in the Sexual Orientation cases. In the Obergefell decision, Justice Kennedy’s opinion is completely unclear as to which analysis he was using (if either) Regardless of whether Substantive Due Process or Equal Protection is used, the Essential Question remains the same: Does the government have a legitimate interest in condemning homosexuality as Immoral?

Should Sexual Orientation be considered a Suspect Classification? 4 Considerations generally determine whether a group qualifies for suspect classification status: 1) History of Discrimination? Requires a judgment of how a group Ought to be treated 2) Political Powerlessness? Homosexuals participate strongly as Individuals; but as a Group? 3) Immutability? Science is inconclusive at this point; opinions usually relate to a substantive judgment. At any rate, is this Relevant? 4) Discreteness and Insularity? Neither applies to homosexuals; but this may Contribute to Powerlessness. Also, many homosexuals may not be Discrete (identifiable) as a Result of discrimination

State Regulation of Sodomy Until 2003, many states had laws on the books that criminalized certain types of sexual contact, typically characterized as “sodomy” Bowers v. Hardwick (1986) Georgia statute banning Sodomy—as applied to homosexuals—is Upheld. Substantive Due Process analysis: The right to engage in Sodomy is held to Not be a Fundamental Right; Therefore Rational Basis Review is employed Traditional Morality is held to be a Legitimate government interest, and Justifies this statute Lawrence v. Texas (2003) Texas ban on homosexual sodomy is Struck Down. Bowers is directly Overruled Majority uses Due Process analysis, but does Not identify a Fundamental Liberty Interest. Law is struck down under Rational-Basis standard

Same-Sex Marriage U.S. v. Windsor (2013) The Federal Defense of Marriage Act (DOMA) defined marriage under federal law as unions of one man and one woman, and allowed states to refuse to recognize same-sex marriages performed in other states In a 5-4 decision, DOMA is struck down As usual in these cases, the Court’s reasoning is unclear Officially, the statute is struck down using rational basis review, under the Due Process Clause But the opinion also discusses equal protection and federalism (the original “privileges and immunities” clause) Obergefell v. Hodges (2015) STATE bans on same-sex marriage are struck down Same-sex marriage is now legal everywhere in the country Majority opinion says that bans on same-sex marriage violate BOTH Due Process and Equal Protection

Student SCOTUS: LGBT Discrimination as Sex Discrimination? Kimberly Hively was an administrative assistant at Ivy Tech Community College . Hively was fired from her job. She alleges that she was fired because she is a lesbian. Title IX of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex. In Price Waterhouse v. Hopkins (1989), the Court held that sex discrimination includes discrimination against employees for failing to adhere to “gender stereotypes”. Hively now argues that her employer’s decision to fire her because of her sexual orientation amounts to prohibited sex discrimination under Title IX. Her lesbianism, she argues, is the ultimate “failure to adhere to the female gender stereotype.” How will your Supreme Court decide this case? Hively v. Ivy Tech Community College (7th Cir., 2017)

Another Case: Transgender Bathrooms Gavin Grimm is a 17-year old high school student at Gloucester High School in Virginia. Grimm is a transgender individual. His gender self-identity is male, but he was born with female sex organs. At the beginning of his sophomore year, with the permission of his school’s principal, Grimm began using the boys restrooms at school. When the story became known in the wider community, however, the Gloucester County School Board enacted a policy restricting students to using the bathrooms that correspond to their physical sex. Grimm sued the School Board, arguing that its policy violates his right to Equal Protection. The policy may also conflict with a federal education law that bans sex discrimination by public school districts. Finally, it conflicts with an Obama Administration directive to public school districts to allow students to use bathrooms that correspond to their gender self-identity. How should the Supreme Court decide this case? Gloucester County School Board v. Grimm (4th Cir., 2016)

Homework Student SCOTUS 2018 Term Opinions are Due Monday! Start preparing for the Unit 6 Test