Current Issues in Civil Rights

Affirmative Action Affirmative action – preferential hiring practices should be used in hiring

Equality of Results Racism and sexism can be overcome only by taking them into account in designing remedies Equal rights not enough, people need benefits Women should be given material necessities, such as free daycare, that will help them enter the workforce Position generally justified in the name of diversity or multiculturalism

Equality of Opportunity Reverse discrimination occurs when race or sex is used as a basis for preferential treatment Laws should be color blind and sex neutral Government should only eliminate barriers Supports tend to be conservative, favoring traditional family arrangements

Affirmative Action Equality of Results v. Equality of Opportunity – Which model should affirmative action follow? – Question debated in the courts, but there is no clear direction from Supreme Court decisions Court is deeply divided (affected by conservative Reagan appointees) Law complex and confusing, but some standards have emerged for quotas and preference systems Regents of the University of California v. Bakke

Quotas and Preference Quota system subject to strict scrutiny – must be a compelling state interest to justify quotas Must correct actual pattern of discrimination Must ID actual practices that discriminate Federal quotas given deference because Constitution gives Congress greater power to correct the effects of racial discrimination Voluntary preference systems easier to justify -Not likely to apply to persons laid off

Affirmative Action Compensatory action v. preferential treatment – Public supports compensatory action (helping minorities catch up) and opposes preferential treatment (giving minorities preference, quotas) – In line with United States political culture

Affirmative Action: Famous Supreme Court Cases – Adarand Constructors v. Pena—1995 (any racial classification is subject to strict scrutiny) – Gratz v. Bollinger—2003 (overturned University of Michigan policy that gave “bonus points” to minority applicants into undergraduate programs) – Grutter v. Bollinger—2003 (upheld University of Michigan Law School policy that used race as “plus factor” but not as part of numerical quota)

Homosexual Rights Courts usually allow states to determine gay and lesbian rights Bowers v. Hardwick(1986): Georgia allowed to ban homosexual sexual activity Romer v. Evans(1996): Colorado voters had adopted state constitutional amendment making it illegal to protect persons based on gay, lesbian, or bisexual orientation 1. Supreme Court struck down Colorado amendment 2. Colorado amendment violated equal protection clause Lawrence v. Texas (2003): Texas law banned sexual conduct between persons of same sex 1. Supreme Court overturned law 2. Used same language it has used in cases involving contraception, abortion.

Homosexual Rights Private groups allowed to exclude homosexuals from membership – Example: Boy Scouts

Homosexual Rights Gay marriage up to the states 1. Massachusetts Supreme Judicial Court decided (2003) that gay and lesbians must be allowed to marry in the state 2. Mayor of San Francisco also issued gay/lesbian marriage licenses in defiance of state law 3. Nationally, voters generally opposed to same-sex marriage but would allow “civil union” 4. Under 1996 Defense of Marriage Act (Clinton), no state has to give legal status to same-sex marriage performed in another state, defined marriage as husband and wife

Currently… In the United States, same-sex couples can marry and receive state-level benefits in: – Connecticut – Iowa – Massachusetts, – New Hampshire – Vermont – the District of Columbia The states of New York, New Jersey, Maryland, and Rhode Island do not facilitate same-sex marriages, but do recognize same-sex marriages performed in other jurisdictions. Additionally, several states offer civil unions or domestic partnerships, granting all or part of the state-level rights and responsibilities of marriage. Thirty-one states have constitutional restrictions limiting marriage to one woman and one man.

Same-sex laws around the world Blue: legal- darker = more rights Red/Orange: illegal- darker = harsher penalty (dark red is death penalty)

2010: Perry v Schwarzenegger US District Court for the Northern District of California Stated the evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. No evidence to suggest that procreation is at the heart of the government’s interest in protecting marriage. Ban on Proposition 8 is unconstitutional Case will be decided in the Supreme Court