1. The Right to Privacy VI Gay Rights II
Lecture 34 Chapter 10
The Right to Privacy VI
Gay Rights II

2. This Lecture Chapter 10 We will finish the part on gay rights
Can laws prohibiting same sex couples from marrying pass Constitutional scrutiny?
If so what scrutiny level?
DOMA (Windsor)
California Gay Marriage Ban (Perry)
Obergefell v. Hodges (2015)
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3. 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.”

4. 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

5. 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

6. 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

7. 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

8. 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 +)

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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?

16. 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

17. 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

18. 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

19. 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

20. 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.

21. 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”

22. 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

23. 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?

24. 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?

25. Another issue- 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?

26. Next Lecture Finish Chapter 10 Dealing with two issues Pages 449-460
The Right to Die
Cruzan v. Missouri Department of Health Director (1990)
Drug Testing
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