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