Lecture and Materials Week 12: Social Policy November 9, 2017

Lecture and Materials Week 12: Social Policy November 9, 2017
State Politics Lecture and Materials Week 12: Social Policy November 9, 2017

Class Agenda Discussion of Week 12 Discussant News Articles
Discussion of Election Results Presentation/Discussion of Redistricting Paper from Last Week Discussion of Abortion Policy and Cases Discussion of Gay Rights Policy and Issues

Election 2017 It was a big night for Democrats bad for suburban Republicans Virginia- Northam wins 54-45 New Jersey- Murphy wins 56-43 Virginia House of Delegates Dems gain at least 15 seats (needed 17 for full control) Win mayor races in St. Petersburg and Manchester, New Hampshire Wins win control of Washington State Senate Republicans hold Chaffetz seat in Utah (was a Romney seat)

In New York Mostly good for Democrats
Picked off County Executive races in Westchester and Nassau And supermajority of Westchester County Legislature Dems win races in Hempstead for first time in more than a century De Blasio easily reelected Lone area of good news for Republicans was in Binghamton and Broome County Big win for Rocco Turdo he was a breathe of fresh air Syracuse elects an Independent over a Hispanic Democrat where the party was divided Dem mayors reelected in Albany, Buffalo and Rochester Con-Con loses big time Other two propositions pass

Best, et al One important thing to look at is the vote distribution
Is it a normal distribution? Is it bimodal?

Best, et. al

Interesting Development in Alabama

The State of Abortion before Roe
Before Roe, few states allowed most abortions to be performed The majority did not even allow exceptions for rape/incest, life of the mother, or deformity It was a crime to perform or obtain an abortion Many obtained illegal abortions or self-induced Large numbers of deaths Some traveled to New York or even to other countries

Eisenstadt v. Baird (1972) Eisenstadt v. Baird (1972)
Brennan, J. for a 6-1 Court (Powell and Rehnquist not on the Court long enough) Burger, C.J. dissenting Struck down a law banning the sale of contraceptives to single people Violated their rights, not just of married ones as in Griswold If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.“ Also, since Griswold, civil liberty and women’s groups began to push the legal theory that the right to privacy included the right to obtain an abortion Would be a fundamental right States would not be able to justify a compelling state interest to ban the procedure This led to a lot of challenges to abortion laws to test this proposition

Roe v. Wade (1973) Background I
Challenge to a Texas abortion law that banned all abortions except to save the life of the mother Plaintiff here was Norma McCorvey, a 21 year old women who had claimed she was raped It turned out she lied about that This was in 1969 two female attorneys challenged the law They won at the district, and circuit level but do not get an injunction against the law On 9th Amendment grounds They were then able to able to the Supreme Court (both sides cross appealed) The pro-choice side said this was a fundamental right, thus subject to strict scrutiny risks associated with restrictive abortion laws Texas said the compelling state interest was protection of human life

Roe v. Wade- II Background II
The case was argued initially before only 7 justices A majority were in favor of striking down the laws Burger assigned the opinion to Blackmun Brennan and Douglas objected to this on seniority grounds They wanted to go further than Blackmun vagueness Blackmun seemed to be brought around it being more of a right in Doe On privacy and women’s rights grounds Burger then got the case reargued with Powell and Rehnquist joining the Court It was ordered re-argued by a 5-4 vote before the opinion of Blackmun could be issued

Roe v. Wade- III Arguments For Roe For Wade (Texas)
This is a fundamental personal right secured by the right to privacy Any state interest is in regulating private sexual conduct Not public health or protection of human life For Wade (Texas) There is no right to an abortion in the Constitution Personal/marital privacy rights are not absolute Life begins at conception, making it a compelling state interest to save the life of the fetus even if it goes against the rights of the women

Roe v. Wade- IV Blackmun, J. for a 7-2 Court
Burger, C.J., Douglas, J. and Stewart, J. had concurring opinions, but signed off on this majority opinion Looks at the history of reasons for the laws Victorian sexual morals discourage illicit sexual conduct Abortion was once a very dangerous procedure for the woman, but now is not Blackmun had spent a week during the 1972 recess at the Mayo Clinic looking into this State interest in protecting prenatal life Starts from the proposition that all life begins at conception, thus the only way to justify an abortion would be that interferes with the mother’s life Key points of case Abortion right fundamental Strict Scrutiny applied Trimester framework

Roe v. Wade- V More from Blackmun, J.
He talks about the right to privacy Note that he hedges on where the right comes from but says it exists And then says it applies to the right to of a woman to decide whether or not to terminate a pregnancy May lead to stress on the mother to carry to term psychological, unwed mother stigma, financial Court finds this primarily a medical procedure However, he says the right is not absolute to all times in a pregnancy It is on a scale from conception to birth timeline They do not answer when life begins question The state does have more interest as the pregnancy progresses

Roe v. Wade- VI More from Blackmun, J.
Examples of legitimate state regulations Requirements as to who can perform the abortion (licensure) The type or location of the facility The state’s interests come into play at viability—trimester framework First trimester leave up to doctor and women Sometime after the end of the first trimester legitimate to regulate for maternal health After viability state interest highest, may regulate or even ban except when the mother’s life or health at stake

Roe v. Wade- VII Rehnquist, J. dissenting
Does not believe this involves the right to privacy He isn’t exactly sold on privacy as a right to start with He would apply a rational basis review to abortion regulations Instead of compelling state interest test, this would lead to most being upheld He notes that using this test means most regulations will fall and the Court will place its judgment over those of lawmakers These statutes were valid when the 14th Amendment was adopted so they should be considered valid now Questions when abortion should be found to be a fundamental right

Roe v. Wade- VIII White, J. dissenting, joined by Rehnquist, J.
Finds no constitutional basis for the ruling Ruling overrides most state laws on abortion Takes away their ability to legislate on the issue of abortion State cannot weight the importance of the rights of the fetus Interposes a constitutional barrier to state efforts to protect human life Gives a right to mothers and doctors to terminate it This is “raw judicial power” Judicial restraint argument Let the people decide the issues in the states He switches from Griswold while Burger, C.J. switches the other way

After Roe What regulations are allowed?
While states could not ban abortion, many tried to severely restrict it Court will hear many cases on this What about the political reaction? Large opposition initially was from Roman Catholics Then joined by Protestant Evangelicals The parties eventually split by this issue

Planned Parenthood v. Danforth (1976)
Blackmun, J. for a 6-3 Court Challenge to a broad Missouri law regulating abortion Court strikes down parental consent and spousal consent provisions Left open some parental consent laws Judicial bypass Ayotte v. Planned Parenthood of Northern New England (2006) upheld a parental notification law with a judicial bypass and exceptions for life/health of the minor These provisions applied to the first trimester The seemed to say that no regulations were going to be allowed then They did uphold a provision requiring the woman to sign a document saying that she had not been coerced

Harris v. McCrae (1980) Harris v. McCrae (1980)
Issue of the Hyde Amendment which limited federal abortion funding Challenged on violating the right to privacy, equal protection for poor women and Establishment Clause Court rejects all three by a 5-4 vote (Powell and Stewart switch from Roe) Does not carry a constitutional entitlement to funding of that right Key is not to create any new obstacles Being unable to afford not one of those

Akron v. Akron Center for Reproductive Health (1983)
6-3 opinion by Powell, J. striking down all parts of an expansive Akron abortion law 1) All first trimester abortions must be performed in a hospital 2) Minors under 15 must receive written parental consent 3) Woman must give informed consent 4) 24 hour waiting period 5) Disposal of aborted fetus regulation (vagueness) These first four were struck down because the intent was to discourage a woman from obtaining an abortion O’Connor criticizes the Roe trimester framework in regard to viability She proposes an “undue burden” standard If the regulation does not unduly burden the right to an abortion, apply rational basis If it does place an undue burden, apply strict scrutiny Note she didn’t say to overrule the fundamental holding in Roe

Thornburgh v. American College of Obstetricians and Gynecologists (1986)
Challenge to a similar law as was found in Akron 1) Informed Consent requirement 2) Women must be given information on the risks of abortion 3) Certain reporting procedures 4) Medical techniques to be required after viability 5) Two physicians for post-viability abortions 5-4 decision by Blackmun, J. (Burger, C.J. on the dissenting side here) Strikes down the law for similar women’s rights reasons Reagan Administration asked the Court to overrule Roe

Webster v. Reproductive Health Services (1989)
Challenge to a Missouri law that: 1) Required Missouri laws to be interpreted to protect the unborn, subject to federal court limitations 2) Prevented governmental employed doctors from aborting a viable fetus 3) Prohibited state employees to perform or assist in abortions except with the life of the mother exception 4) Gag-rule prohibited the use of public funds, state employees or facilities to encourage or counsel a women to have an abortion, with the life of the mother exception 5) Required a viability test for certain later term abortions This time a 5-4 Court upholds the restrictions They say that Harris applies on the state funds issue Then they also say that the government has an interest in protecting viable fetuses Scalia, J. argued for the overturning of Roe and was upset that they did not take up this issue directly Blackmun, J. saw this as the Court looking to do so in the future

The Court Changes under Reagan/Bush
With 12 years of Republican presidents, the Court changes 1981 Stewart O’Connor 1986 Burger Rehnquist as Chief Justice 1986 Rehnquist/Burger Scalia 1988 Powell Kennedy 1990 Brennan Souter 1991 Marshall Thomas Four of these changes were replacing very pro-Roe justices Would the Court change its mind?

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Background Challenge to the Pennsylvania Abortion Control Act of 1989 1) Informed consent and a 24 hour waiting period 2) Parental consent for minors with a judicial bypass 3) Spousal notification 4) Medical emergency definitions 5) Comprehensive record keeping on all abortions and even details on the fetus The clinics in Pennsylvania challenge the law, and win at the district court The 3rd Circuit reverses, using the undue burden test, but strikes down spousal consent One judge on this panel was Samuel Alito, who would have upheld all of them The Bush Administration urged for Roe to be overturned

Planned Parenthood of Southeastern Pennsylvania v. Casey- II
Arguments For Planned Parenthood Strict scrutiny must apply abortion rights are a fundamental right Undue burden test to vague and not manageable Rational basis too deferential to regulations The law loses under all reviewable standards For Casey (and Pennsylvania) Proper standard is undue burden and this meets it In the alternative, the Court should overrule Roe

Planned Parenthood of Southeastern Pennsylvania v. Casey- III
O'CONNOR, KENNEDY, and SOUTER, JJ., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, in which BLACKMUN and STEVENS, JJ., joined, an opinion with respect to Part V-E, in which STEVENS, J., joined, and an opinion with respect to Parts IV, V-B, and V-D STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p BLACKMUN, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, post, p. 922. REHNQUIST, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which WHITE, SCALIA, and THOMAS, JJ., joined, post, p. 944. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and THOMAS, JJ., joined, post, p. 979

Planned Parenthood of Southeastern Pennsylvania v. Casey- IV
From the joint O’Connor, Kennedy, Souter, JJ. Judgment/opinion One does not often see a three person joint opinion Roe is saved is the long and short that the public grasped But the important thing about Casey is that Casey is not the relevant law on abortion regulations, not Roe The Court reaffirms the central holding in Roe v. Wade by applying stare decisis 1) The right of a women to have an abortion before viability without undue interference from the government State interests not strong pre-viability 2) The state has a right to restrict abortion post-viability if they provide for life/health of the mother exceptions 3) The state has a legitimate interest in protecting material health and the life of the fetus from the beginning

Planned Parenthood of Southeastern Pennsylvania v. Casey- V
More from the trio They find that the right to an abortion is derived from the 14th Amendment Due Process Clause Key is the word “liberty” There are areas where government cannot enter, such as marriage (Loving) There is a liberty interest for the women in abortion decisions that is unique This is similar to the choice to use contraception Women’s liberty with respect to personal decisions regarding procreation “The destiny of the woman must be shaped by to a large extent on her own conception of her spiritual imperatives and her place in society”

Planned Parenthood of Southeastern Pennsylvania v. Casey- VI
Even more from the three Stare decisis is not a command ask these questions 1) Was the rule unworkable? Roe not unworkable 2) Is there some detrimental reliance on the standard? Women have relied on their ability to control their own bodies 3) Have other parts of the law rendered the case abandoned? No 4) Have the facts changed? They do acknowledge some scientific discoveries, but nothing to change the central holding 5) Have the facts come to be seen differently so that the old rule has been robbed of its application or justification? The central holding unweakened

Planned Parenthood of Southeastern Pennsylvania v. Casey- VII
More on stare decisis from the three They look to the lines of cases that have been overruled Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923) were overruled by West Coast Hotel v. Parrish (1937) Overturned because they relied on fundamentally false assumptions Plessy v. Ferguson (1896) overruled by Brown v. Board of Education (1954) Facts had changed over time These situations do not apply to Roe Overturning Roe could call into question the Court’s legitimacy

Planned Parenthood of Southeastern Pennsylvania v. Casey- VIII
We are not done from these three They put limits on the right to an abortion New standards by the Court to apply to abortion regulations Adoption of undue burden test if the purpose of the law or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus is viable The trimester framework of Roe is rejected The state may seek to make sure the choice of a woman is informed, but it may not pose an undue burden The state may regulate health and safety of a woman seeking an abortion so long as those regulations do not place an undue burden on the woman The state may not prohibit a women from obtaining an abortion before viability The state does have an interest post-viability

Planned Parenthood of Southeastern Pennsylvania v. Casey- IX
Application to the Pennsylvania Law Most of the regulations survive the challenge under this standard of review Informed consent not an undue burden Affirms previous precedent on the parental consent with a judicial bypass The recordkeeping provisions alright except on the spousal issues Some fail Spousal notification can make the right non-existent Record keeping provision with regard to whether the woman has notified her spouse

Planned Parenthood of Southeastern Pennsylvania v. Casey- X
Blackmun, J. concurring in part, concurring in judgment in part, and dissenting in part He recognizes their courage in this opinion Likes they upheld the fundamental holding of Roe But would keep the strict scrutiny standard in place as well as the trimester framework This would mean for him to invalidate all the provisions of the act He then acknowledges that one vote could overrule Roe The majority and dissent worlds apart Abortion should be an issue at confirmation hearings for his successor He seems to acknowledge he will leave the Court at some point

Planned Parenthood of Southeastern Pennsylvania v. Casey- XI
Stevens, J. concurring in part and dissenting part He sees a different understanding of an undue burden It is too severe or lacks a legitimate rational justification He finds the 24 waiting period an undue burden

Planned Parenthood of Southeastern Pennsylvania v. Casey- XII
Rehnquist, C.J. joined by White, Scalia, and Thomas, JJ. Concurring in judgment in part and dissenting in part They would have overruled Roe They say that the plurality leave only a shell of Roe left Abortion different from contraception, procreation or marriage as it ends potential life The decision to abort involves the destruction of a fetus Long history of abortion being illegal after the 14th Amendment Court should reconsider this case the cases they chose in comparing what could be overruled were not grounded properly themselves should have been overruled Undue burden standard less grounded constitutionally than strict scrutiny They would apply rational basis as the test That would have all the regulations be upheld

Planned Parenthood of Southeastern Pennsylvania v. Casey- XIII
Scalia, J. joined by Rehnquist, C.J., White and Thomas, JJ. Concurring in judgment in part and dissenting in part Abortion is not a liberty protected by the Constitution Constitution says nothing about it It was long banned before Roe Rational basis would mean all parts of the statute upheld He brings up the Dred Scott case where the Court thought they were taking the issue off the political table This should be left to the people to decide, not the courts

Some Changes to the Court happen
Under President Bill Clinton 1993 White Ginsburg 1995 Blackmun Breyer With Ginsburg, the balance of the Court shifts to the pro-choice side 6-3 on the central holding However, Kennedy and O’Connor must still uphold restrictions

Stenberg v. Carhart (2000) Stenberg v. Carhart (2000)
Challenge to a Nebraska law that banned partial birth abortion Only exception was for the life of the mother The doctor argued performance of the procedure was a safety issue and the law was an undue burden Breyer, J. for the 5-4 Court He found it was an undue burden O’Connor concurred saying that there needed to be a health exception Kennedy dissented on the grounds that this law would be allowed under Casey Thomas, J. joined by Rehnquist, C.J. and Scalia, J. reiterated that they felt that Roe was incorrectly decided and there was no right to an abortion in the Constitution Scalia, J. also criticized Kennedy for adopting the undue burden standard

Two more changes Under George W. Bush 2005 Rehnquist  Roberts
2006 O’Connor  Alito An author of Casey replaced by a 3rd Circuit judge that had voted to uphold all the provisions of the law

Gonzales v. Carhart (2007) Gonzales v. Carhart (2007)
Challenge to the federal Partial Birth Abortion Ban Act of 2003 This was very similar to the Nebraska law Kennedy, J. for a 5-4 Court They did not explicitly overrule Stenberg, but somewhat distinguished it But found that a health exception was unnecessary for this procedure Casey said that the state had an interest in fetal life Left open as applied challenges if the woman’s health really is in danger

Gonzales v. Carhart- II More on Gonzales v. Carhart
Thomas, J. joined by Scalia, J. concurring They noted that there is no constitutional right to an abortion in their thinking But they went along with this case But note that Roberts, C.J. and Alito, J. did not join in this concurrence Ginsburg, J. joined by Stevens, Souter, and Breyer, JJ. Dissenting She says the majority did not follow precedent She also had a problem with the lack of a health exception

More Court changes Under President Obama 2009 Souter Sotomayor
2010 Stevens Kagan In 2016, Scalia dies, but the seat is left vacant by Republicans in the Senate not taking up the nomination 2017 Scalia Gorsuch

The 2010 Midterms In 2010, Republicans win a massive landslide across the country They take many governor’s and state legislatures Many of these states immediately start to pass severe restrictions on abortions Many of these changes on their face might seem benign, but their effects were to close down many abortion facilities within their states, and one of these states was Texas

Whole Women’s Health v. Hellerstedt (2016)
Background Challenge to a massive Texas bill restricting abortion rights Provisions of the law challenged Abortion providers must have admitting privileges in a hospital within 30 miles Abortion providers must meet the same standards as ambulatory surgical centers and must upgrade to the standards of a hospital room The effect of this was to shut down a large number of abortion providers in the state One estimate said it would leave only five of 42 open, and only in the major cities, leaving the rural areas and the Rio Grande Valley with no providers

Whole Women’s Health v. Hellerstedt- II
Arguments For Whole Women’s Health These provisions would shut down many clinics The intent was to do this by the Legislature These regulations do not relate to maternal health, but place an undue (or substantial) burden on the right of a woman to seek an abortion in Texas For Texas There is no undue burden Under Casey, the state has an interest in regulations that aim to promote maternal health and these regulations do just that Women in West Texas could go to get an abortion in New Mexico

Whole Women’s Health v. Hellerstedt- III

Whole Women’s Health v. Hellerstedt- IV
Breyer, J. for a 5-3 majority The Court strikes down these two restrictions "Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution” In effect, they find the restrictions are not health related, but mask an intent to shut down as many abortion clinics as possible No justification for the admitting requirement for women’s health no medical benefits Many hospitals now ran by religious institutions He rejects the arguments made with regard to Kermit Gosnell, an abortion provider in Philadelphia, as he said these regulations are unnecessary Cutting the number of abortion clinics where women have to travel much further is an undue burden

Whole Women’s Health v. Hellerstedt- V
Ginsburg, J. concurring She notes that abortion is a very safe procedure Even safer than childbirth she argues And many of these procedures not subject to these restrictions Any law making abortion access more difficult in the name of safety should be struck down

Whole Women’s Health v. Hellerstedt- VI
Thomas, J. dissenting Should have deferred to the legislature here Court misinterprets the undue burden standard “Reimagines it” Alito, J. dissenting, joined by Roberts, C.J. and Thomas, J. The link between the law and closures of abortion clinics may be only casual Other things may have had an effect Texas may have been motivated in these health and safety measures by the Gosnell case Not a sufficient number of women were affected by this law to constitute an undue burden

When can…. When can government regulate sexual activity?
We know they can in cases of Non consensual activities (rape, force, groping) Which can occur inside a marriage too Between adults and minors (child molesting, sexual misconduct with a minor) And possession of child pornography Bestiality (sex between humans and animals) Polygamy (plural marriage) Prostitution (sex in exchange for money legal in parts of Nevada) Some pornography, including child pornography Public nudity

But then… What about? Most consensual sexual activity between consenting adults? Adultery What is the age of consent? Sex between unmarried couples Sex between persons of the same sex Some particular sex acts (anal and oral sex many states had these laws) Prohibiting marriage between same sex couples Possession of adult pornography (Stanley v. Georgia (1969)) Does the right to privacy extend to these things?

Bowers v. Hardwick (1986) Bowers v. Hardwick (1986)
Case from Atlanta, Georgia An officer entered Hardwick’s home to serve a warrant for failure to appear It turns out the warrant was invalid due to a clerical error His roommate let him in, and the officer found Hardwick and another man engaging in consensual oral sex, which violated Georgia’s sodomy law and arrested him The Fulton County District Attorney decided not to charge him believing this was private sexual activity and should not be subject to criminal prosecution However, Hardwick and the ACLU decided to challenge the law He said it would interfere with his rights and put him in fear of being gay He loses at the district court level, but wins at the 11th Circuit

Bowers v. Hardwick- II White, J. for a 5-4 Court upholds the law
Consensual homosexual sexual activity not protected Not deeply rooted in the nation’s history Sodomy an offense in all the colonies at the time of the Constitution Most states still outlaw it today Makes a slippery slope argument regarding adultery, incest, other sexual crimes Rational basis the standard of review The Court ignores the fact that heterosexual activities banned here too Powell, J. concurring Worried about an 8th Amendment challenge But upheld this reluctantly and later admitted he was wrong

Bowers v. Hardwick- II Other justices views Burger, C.J. concurring
A deeply anti-gay view by the Chief Blackstone’s characterization of sodomy as “a crime not fit to be named” “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” Focused on Judeo-Christian teachings Seemed to be the strong public opinion at the time Blackmun, J. dissenting, joined by Brennan, Marshall, and Stevens, JJ. Not a right to sodomy but an issue of protections of privacy rights Court seemed obsessed with homosexual sexual activity Stevens, J. dissenting Focused on selective enforcement against gays but not heterosexual couples

Roemer v. Evans (1996) Roemer v. Evans (1996)
Colorado voters adopted a Constitutional amendment in 1992 whose primary purpose was to undo several municipal gay anti-discrimination ordinances It banned all gay rights ordinances or judicial decisions in the state Gay rights groups challenged the law and were upheld in that by the Colorado Supreme Court on the basis of violating the 14th Amendment Equal Protection Clause It passed statewide but lost in the areas with the gay rights ordinances Many ballot initiatives have and would in the future target the LGBT community starting with the Riggs Amendment in California to today

Roemer v. Evans- II The opinion of Kennedy, J. for a 6-3 Court affirms
The law singled LBGT persons out and denied them the protections of local anti- discrimination ordinances Law designed to target them The law must have advanced a legitimate governmental interest, but this did not It was not prohibiting “special rights” for gays "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.“

Roemer v. Evans- III Scalia, J. joined by Rehnquist, C.J. and Thomas, J. dissenting Bowers allowed for laws against sodomy, so laws targeting gays were more or less approved of Court should not override the will of voters in Colorado He buys into the “special rights” argument of opponents of gay rights at the time “Deterioration of sexual morality” was what Colorado voters were seeking to prevent Homosexuality is a social harm worthy of targeting Scalia did not say “I respectfully dissent” but only “I dissent”

2003 State of Sodomy Laws By 2003, only 13 states still had sodomy laws on the books One state was Texas Note Georgia repealed their law in 1998 Most states did not enforce these laws to any great extent

Lawrence v. Texas (2003) Background
Similar to how this case was to Bowers Police enter the apartment of Lawrence He was engaged in anal sex with Garner They were arrested and charged with violating the state’s sodomy law Texas law only applied to those of the same sex Outside groups (LAMBDA Legal) wanted this case to challenge Texas law They ended up having to go to a trial pleading no contest to the charges after their privacy and Equal Protection claims were denied They failed in their attempts to overturn the convictions and thus asked for cert

Lawrence v. Texas- II Arguments For Lawrence and Garnar For Texas
This law violates the right of privacy in the home and liberty rights Bowers should be overruled This law violates Equal Protection by singling out gays for enforcement For Texas Bowers still applies There is no right to homosexual sex as a fundamental right Rational basis applies and there are two justifications: public morality and family values It does not target only gays

Lawrence v. Texas- III Kennedy, J. for a 6-3 Court
Question for the Court is whether Lawrence is free to engage in private conduct in the exercise of their liberty under the 14th Amendment Due Process Clause This means they have to reconsider Bowers v. Hardwick People’s private lives Liberty allows gays to make decisions of sexuality themselves Only recently have laws sought to target gays, most were never enforced on the books The Model Penal Code of 1955 took out sodomy and any penalties for private sexual relations conducted in private Kennedy looked to a decision of the European Court of Human Rights invalidating an anti- sodomy law in Northern Ireland

Lawrence v. Texas- IV More from Kennedy, J.
More on the reconsideration of Bowers There are now only 13 states with a sodomy law on the books down from 25 before Laws are still largely non-enforced Two new cases since Bowers cast doubt Casey- protection for decisions relating to marriage, contraception, procreation, family relations child rearing, and education Romer- Striking down a law targeting gays as violating Equal Protection These cases have eroded Bowers Kennedy says Bowers was wrongly decided in 1986 and not correct today It should therefore be overruled

Lawrence v. Texas- V Kennedy, J. opinion
Application of the law to the case This case involves only private, homosexual conduct within the home The state cannot demean the existence of gays by making their private sexual conduct a crime Due Process Clause gives them the right to engage in this without governmental interference There is no legitimate state interest to justify this law The 14th Amendment every generation can invoke its principals in their own search of greater freedoms The Texas courts are reversed

Lawrence v. Texas- VI O’Connor, J. concurring in judgment
She does not favor overruling Bowers However, she does join in the overturning of the case here She says Bowers did not hold that moral disapproval of gays was a governmental interest That is not sufficient to justify rational basis She finds an equal protection issue in the fact that it bans gays from engaging in one type of sexual conduct while at the same time not banning heterosexuals from the same exact conduct She would overturn on this basis

Lawrence v. Texas- VII Scalia, J. joined by Rehnquist, C.J. and Thomas, J. dissenting He again uses the ending “I dissent” He questions the judges that reaffirmed Roe based on stare decisis overturning Bowers v. Hardwick now This law like many others impose a restriction on liberty Allowed as long as due process of law followed He notes that the Court did not apply strict scrutiny or hold gay sex as a fundamental right Scalia would find rational basis for the law Homosexuality immoral and unacceptable Court signs on to “so called homosexual agenda” They should go through the democratic process for their aims Scalia thinks this decision may someday lead to gay marriage

Lawrence v. Texas- VIII Thomas, J. dissenting
He calls the law in Texas “uncommonly silly” He would repeal it if in the Texas General Assembly However, he says, like Stewart, J. in Griswold that he is not a legislator and it is not his position to overturn the law He finds no right to privacy in the Constitution

After Lawrence This decision ended all remaining sodomy laws in the country LGBT groups did achieve limited success in certain parts of the country in anti- discrimination ordinances However, most states and the federal government remained hostile to gay rights However, the next big fight would be on marriage after Massachusetts legalized same sex marriage in 2003 Which is where we head to next time

Goodridge v. Massachusetts Department of Public Health (Mass. 2003)
A 4-3 decision of the Massachusetts Supreme Judicial Court legalized gay marriage in Massachusetts This case dealt with the Massachusetts Constitution But they did discuss Lawrence and Loving The Court also declined strict scrutiny but used a rational basis review All three state basis for the law failed under this application “The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual.... Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.”

Reaction to this ruling
The first valid gay marriages took place on May 17, 2004 in Massachusetts Other municipal jurisdictions had tried to issue marriage licenses before this but were slapped down by the courts (including San Francisco and New Paltz) President Bush announces support for a constitutional amendment to ban gay marriage and civil unions across the nation Republicans put state constitutional amendments on the ballots in 2004 to drive up Evangelical and social conservative turnout Many political analysts believe this issue helped reelect him in 2004 because of his narrow win in Ohio

State and public attitudes change
Over the next few years, the vast majority of states would enact constitutional amendments banning gay marriage (and often civil unions too) Both major Democratic candidates in 2008 supported civil unions but opposed gay marriage However, opposition was ebbing and support was growing

The country also elects (and reelects) Barack Obama
While Obama initially opposed gay marriage, he was on board for many other gay rights measures Repeal of Don’t Ask Don’t Tell (done in 2010) Repeal of DOMA (refused to defend in Court) Support of ENDA (passes Senate but not House) By 2012, he changes his position The public was also now in favor Several blue states had been legalizing gay marriage Including New York in 2011

Iowa Judges The Iowa Supreme Court legalizes gay marriage in the state in by unanimous decision Iowa is a Missouri Plan state on judiciary All three judges subject to retention lose Replaced by judges appointed by conservative Gov. Terry Branstad They were ahead of their time for a state like Iowa which is a lit more socially conservative

United States v. Windsor (2013)
Challenge to DOMA, which said the federal government would not recognize same-sex marriages performed in states This meant they were denied the benefits of marriage Edie Windsor was married and inherited a considerable amount of money from her spouse, but was not subject to the marital exemption under the estate tax and got a bill from the IRS she challenges this The Obama Justice Department refused to defend the law The House Republicans do so She wins at the district and 2nd Circuit levels This created a jurisdictional issue, but the Court decided to rule on the merits

United States v. Windsor- II
Kennedy, J. for a 5-4 Court strikes down the law States have the power to define marriage historically and this interferes (federalism argument) He also says that the federal government cannot treat heterosexual marriages different under the law from homosexual marriages DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty The differentiation demeans the couple, whose moral and sexual choices the Constitution protects it denies them countless benefits that straight couples have Humiliates children of same sex couples The Court finds “no legitimate purpose” for the statute other than to single out gay couples again seems to be rational basis (maybe rational basis +)

United States v. Windsor- III
The dissents Roberts, C.J. is primarily interested in the jurisdictional issue Believes that the Court should not hear the case Scalia, J. joined by Thomas, J. dissenting goes much further “As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.” “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.” Scalia basically forecasted that this opinion would strike down all gay marriage bans Alito, J. thinks the issue should be left up to the people, not the Courts

Hollingsworth v. Perry (2013)
Don’t be fooled here This is the case that upheld a decision in California that struck down a gay marriage ban directly This case dealt with standing, not the issue at hand History The California Supreme Court, by a 4-3 vote in In Re Marriage Cases, ruled that California must allow gay marriage under their state constitution Voters passed a constitutional amendment in 2008 by a to ban gay marriage

Hollingsworth v. Perry- II
Roberts, C.J. for a 5-4 Court The theory would say that the principal has a right to control the agent’s actions The proponents of Prop 8 answer to no one and decide for themselves, with no review They are not elected and cannot be removed People that voted for Prop 8 may have different motivations in how they did so They are thus not agents of the state California could set its own standing rules for state courts, but not in federal courts The effect is to let stand the federal district court ruling overturning Prop 8 and allowing gay marriage in California While not addressing the gay marriage issue

Federal courts interpret Windsor
Immediately after this decision, lawsuits are filed across the country challenging state gay marriage bans The first place one falls is Utah, then Oklahoma The 10th Circuit affirms, and the Supreme Court does not grant a stay or take up the case They let the rulings across the country play out And let those rulings stand All the circuits seemed to agree that issued a ruling Until a three judge panel of the 6th Circuit finds against gay marriage Only then does the Court take up the issue

By the time of Obergefell
By the time of this case, nearly 75% of Americans were living in a state with gay marriage And public opinion changed too

Obergefell v. Hodges (2015) Background
These are challenges from all 4 states in the 6th Circuit, but Obergefell is the lead This case was from Ohio challenging an anti-gay marriage constitutional amendment passed in 2004 It not only banned same sex marriage in Ohio, but it refused to recognize marriage certificates valid in other states Obergefell and his partner, who was terminally ill with ALS, took a special medical flight to Maryland and married on the tarmac he died soon after Obergefell wanted his name as the surviving spouse on the death certificate He wins at the district court level but is reversed at the 6th Circuit

Obergefell v. Hodges- II
More background He wins at the district court level but is reversed at the 6th Circuit by a 2-1 margin They apply rational basis and find: States have a legitimate interest in regulating male-female relationships because they have the ability to procreate Also, states have an interest in letting the people decide, not the courts on this issue The Court must answer two questions? Must a state grant marriage licenses to same sex couples? Must a state recognize same sex marriages from other states?

Obergefell v. Hodges- III
Arguments For Obergefell Violates the Due Process Clause of the 14th Amendment by denying same sex couples the right to marry, which is a fundament right Sexual orientation classifications should be subject to higher scrutiny than rational basis The law fails even rational basis review For Ohio This is an attack on federalism Traditional marriage is not prejudice There are rational basis justifications such as procreation and democratic process

Obergefell v. Hodges- IV
Kennedy, J. for a 5-4 Court The effect of this ruling is nationwide legalization of gay marriage Marriage has a long history in mankind And has changed most marriages once arranged, women’s roles Gays have been able to come out of the closet recently as societal attitudes changed He cites to Loving v. Virginia (1967) which legalized interracial marriage The right to marry is fundamental under the Due Process Clause

Obergefell v. Hodges- V More from Kennedy, J.
Four principals that lead to extension to gay couples Decisions of who to marry under previous cases are among the most private to make The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals This applies equally to same-sex couples Safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education Avoids stigma to the children seeing their parent’s marriage as something lesser These laws humiliate and harms those children Marriage is a key to the nation’s social order Same sex couples lose out on many benefits conferred to married couples

Obergefell v. Hodges- VI
More from Kennedy, J. This is not a right to same sex marriage, but simply a right to marry that should be conferred onto sex same couples as well This is part if the liberty clause of the 14th Amendment These laws also violate Equal Protection Clause and Due Process Clause Fundamental rights may not be submitted to a vote Or be dependent on the outcome of an election Look at the harm caused by Bowers Court also rejects that same sex marriage means less opposite sex marriages This does not require religion to give up their definition of marriage

Obergefell v. Hodges- VII
Kennedy, J. closing remarks No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Obergefell v. Hodges- VIII
Roberts, C.J. dissenting, joined by Scalia and Thomas, JJ. He makes a judicial restraint argument The process was working in favor of gay marriage, let that continue The right to marry does not mean a state must change its definition of marriage The people should make this decision This steals the issue from the people and will cast a cloud unfairly attacks opponents Will lead to religious liberty issues Lets judges decide which rights are fundamental He says only Lochner provides justification for this ruling The Court should follow Glucksberg and be very careful in what rights it deems fundamental “But do not celebrate the Constitution. It had nothing to do with it”

Obergefell v. Hodges- IX
Scalia, J. joined by Thomas, J. dissenting He calls this decision a threat to democracy Leave this to the political process This a power grab by the Court a “judicial Putsch” Means every state was violating the 14th Amendment for many years Gay marriage relatively new everywhere in the world until recently The Court is very unrepresentative of the country as a whole

Obergefell v. Hodges- X Thomas, J. joined by Scalia, J. dissenting
He says the Court misreads the Liberty Clause and Due Process Only applies to physical restraint Focuses on problems that will arise regarding religious liberty Alito, J. joined by Scalia and Thomas, JJ. Dissenting Takes away the right of the people to decide the issue Vilifies those that do not agree Compares them to segregationists Labeling them bigots Will there rights of conscience be protected?

But still little protection for employment discrimination
No protection for employment discrimination at the federal level for LGBT Not so much at state level either Trump has rescinded some protections for federal contractor employees from Obama era

New Legal issues after Obergefell
What if a governmental official refuses to give out a gay marriage license due to religious beliefs? Should they be removed from office? Or should one have a work around? Kim Davis, Rowan County Clerk

Another issue- So-Called Religious Freedom laws
Can a business, whose owners, for religious reasons, refuse to provide services to gays? Many states are giving them that option But what about a baker or caterer asked to provide services at a gay wedding? Masterpiece Cakeshop v. Colorado Civil Rights Commission (pending- oral argument scheduled for December 5) Issue: Whether applying Colorado's public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.

Next Week and Beyond Political Culture Week
I am going to have another reading posted this weekend A big focus next week will be Cramer and Maginiss No class the week after that (Nov 23) I also want each of you to take about a minute-two minutes to describe your paper to the class First draft due December 2 Submit via Blackboard Reputation out tomorrow

Lecture and Materials Week 12: Social Policy November 9, 2017

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Lecture and Materials Week 12: Social Policy November 9, 2017

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