Constitutional Law II

3 November

• Brandt
  This is in here because it represents a significant entry into the gender equality issue: property equality. We usually think of gender equality as being things like access to jobs or equality of pay. This is more fundamental: ownership of property.

  There are 2 different property regimes in the US. First, common-law (about 41 states, in which the male spouse effectively owned and controlled all the property, leading to an obvious sense of domination in the marriage). Finally we got the Married Women's Property Act, which said that if a woman earned some property she could keep it, but basically whoever earns something still keeps it. Second, we've got community property states: property is owned by the marriage in about 8 states. Of course, this wasn't totally gender-equal either, since the men tended to manage the property.

  So anyway, women are approaching (and maybe in some areas) exceeding men. And there was pressure to equalize ownership of property in marriage. So we got the marital property statutes in WI: §§ 766 and 767. WI is the only state in the union with an explicit marital property law.

  So Brandt is an ironic consequence of the law: the law in this case doesn't protect the woman, but rather the man.

• Three introductory points on sexual orientation.
  1. Linguistics. We don't know what to call this issue. There are 2.5 options:
     • Privacy, with its emanations and penumbras. This is the main thrust, and this is how SCOTUS casts the issue. In two ways:
       • Privacy of sexual behavior. This just isn't the state's business.
       • Privacy of home. Even if the state has an interest in sexual behavior, the home is protected.
     • Equal protection. Many statutes distinguish between criminalizing some behaviors based on sexual orientation. The court has avoided saying this so far, but this is what a lot of people think.
     • Fundamental right. Sexual orientation is a fundamental right. This is a marginal, or at least less common approach.
  2. WI law is largely borrowed from MI and NY. We got our law criminalizing unnatural or perverse sexual behavior from MI. In 1955 WI got rid of common-law crime, and codified sexual perversion as a crime with a 5-year penalty. There weren't many prosecutions, but there were some.

     The first political organization to call for repeal of the laws in WI was the Young Democrats in 1966. In 1977 the penalty was modified to just 9 months-- so it's no longer a felony. In 1981 (9 years before any other US jurisdiction) WI passed a statute saying no discrimination in employment or in civil service based on sexual orientation-- that was the first affirmative recognition of equality. But it wasn't until 1983 that the anti-sodomy law was repealed, so there was some ambivalence in the statutes. And now we've got other protections: fair housing, e.g.

     In 2006 59% of the voters agreed with the legislature that the constitution should be amended (Art XIII § 13): marriage is between a man and a woman. But the saga does not end there-- in summer of 2009, Wis Stats were amended again (nb: not the constitution), largely through the vehicle of the budget bill. Chapter 770 is created, providing for domestic partnerships; the only practical difference between this and straight marriage is the name, although the marital property law and the divorce law also don't apply to domestic partners. But for tax purposes, survivor purposes, visitation, health insurance dependency, etc., they're the same. So Helgeland is already somewhat out of date.

  3. Federal caselaw on the issue is also important background. Bowers is sort of the foundational case: 1986. Until then (i.e., the 1980s), discrimination just wasn't being challenged. Now, because cultural attitudes are changing, we've got controversy. But Bowers is an important case because SCOTUS took it. And it was a 5-4 case, with the majority saying that sodomy laws are constitutional, so you can criminalize that behavior, and the court clearly says this is not equal protection, and it's just rational basis: there's no constitutional right to commit sodomy. The 4 dissenters say this isn't a right to commit sodomy-- it's a right to privacy. Powell was the 5^th vote, but he says in his concurrence that he's really only going along with this because it is almost never enforced and when it is, the penalties are not severe; if that changed he'd see an 8A problem. And he's later said that he regrets his vote.
• Bowers See above. Rational basis, no equal protection strict scrutiny (no special protection for this group).
• Romer v. Evans
  Studiously avoids talking about Bowers. The court is obliquely overruling Bowers and just not owning up to it. Scalia points this out in his dissent.

  There's just kind of a general animosity to outsiders here-- they build big houses so that native CO folks can't afford to live there any more, and they also bring their big city attitudes with them. But a couple towns pass gay-friendly legislation, and this makes the state legislature mad enough to pass a law saying no municipality can pass such a law-- you can tried gay people equally if you want, but you can't extend special protection.

  6-3 decision. And it's rational basis, but somehow the state loses: there's no actual rational basis here-- it's either random (and therefore not rational) or it's negative animus (which is also irrational, although it's impossible to eliminate).

  Scalia's dissent: this is not what the people want, and we have a democracy. The court should not change the constitution just because part of society wants it to change. Even moreso: it's not even a majority. It's the "elite."

  So even though the court denies it's a suspect category, perhaps substantively that's what it is: the beginning of equal protection for sexual orientation. Sort of how gender discrimination went, perhaps-- we're maybe at the intermediate scrutiny stage.

  Footnote: a few justices anounce a previously unknown enthusiasm for federalism, and here we've got a state telling local legislatures what to do. Also, Cincinnati passes pretty much the same law as CO had, but they justified it on the basis of minimizing lawsuits. This got upheld on appeal, and never went to SCOTUS-- so a lower court contradicts SCOTUS, except maybe that there's no federalism issue here.

• Lawrence v. Texas
  Another 6-3 decision: to criminalize homosexual sodomy only is unconstitutional. Explicitly overruling Bowers.

  Scalia: hey, maybe we should back off from all of our decisions that have generated controversy. Like Roe-- that's not some kind of "super precedent" if this one isn't.

  Still, this is grounded in privacy, not equal protection.

• Strauss v. Horton
  The court holds that gay marriage is protected under the CA constitution. Instant response: a referendum to amend the constitution. Note that by referendum CA can also vote judges out.

  So Proposition 8 passes: a majority of the population wants this.

  So is negative animus a permissible motive for legislation? Currently in CA, there's a lawsuit pending where advocates for gay side of this issue wants to get the memoranda from the Prop 8 side, because if we can see that, we'll be able to see that there's no rational basis for this. Of course, access to internal campaign memoranda would significantly chill political speech and possibly undermine elections. That's a peripheral issue for us, but there can be a terrible clash between free speech and control of money in elections.

  So we have an amendment, but is it valid if it contradicts the equal protection and privacy clauses? The court here says yes.

  The CA court was kind of brought to heel by over-challenging (some members got yanked after frustrating the peoples' will over the death penalty), so that's probably in the background of this case. They know they can't just fly in the face of the majority of the citizens.

  On the other hand, just because the majority wants something doesn't make it right: they're not allowed merely to oppress minorities. And discrimination against gays is at least as bad as religious discrimination in the US-- not as bad as what happened to African Americans or Native Americans-- but worse than what has happened to minority religions.

5 November

• Back on Strauss v. Horton
  So, Carolene Products Foonote 4: even though the people don't want it, the court should still intervene to protect a minority.

  Also, this is a good category for equal protection, since the discrimination is such a deeply-rooted historical reality, and it's so severe.

  If the majority of the people (or legislature) want to discriminate against a group of people on an artificial basis, the court should step in. Neither the legislature nor the people can move to alter fundamental rights.

  And the VMI case: the equal protection clause is expanding. It covers gender now. Maybe the holding there wasn't just "we don't like gender discrimination," but rather "we don't like discrimination at all." 14A was only about race when it got written, after all. Likewise in Cleburn: the court is interested in protecting people with disabilities as well.

  And Romer: there's no place for discrimination only on the basis of animus, and what other reason could there be for denying gays marriage rights? Also Lawrence: the relationship is a private matter (even Scalia's dissent is citable, because it talks about the majority's holding introducing equal protection). You can even cite Brown: we're not going to tolerate state sponsored discrimination, and the court should take the lead in getting rid of it.

  On the other hand, you don't have to be gay, say some. Things like alienage or race are immutable. And there is certainly a debate about whether this is is a choice or not. Plus so what: religion is a choice, at least for some.

  But what other groups are going to want this protection if we open these floodgates? Well, whoever they are, they're not being discriminated against this badly, and there's not controversy about it.

  How about this: if we give special protection to sexual orientation, we diminish protection for the group that should be protected (African Americans). This was a theory behind opposition to equal protection to women as well. Anyway, that's what 14A was about, so we should concentrate on that. Hard to argue that race issues are over, even if they have improved somewhat. But see Marina Point: it doesn't dilute attention to one kind of discrimination to give attention to another kind of discrimination, it strengthens it-- it's not the categories that we're uptight about, it's the discrimination.

  Sort of like in Atkins, we've got a trend towards greater tolerance of the non-straight population. It's not a legislative trend (which it was in Atkins), but we can say that discrimination is increasingly condemned. On the other hand, there's no such pronounced trend in the area of gay marriage: the legislatures of some states have authorized it, but not the people.

  And some contend that there is a reason for treating straight marriage differently from gay marriage: the marriage is the basic unit of the family worldwide, and procreation is important to humanity. But so what? There are plenty of children ready to be adopted, and we'd like them to go to nice stable home. This, of course, raises other issues: (Palmore) is it hard on the child to be raised in this sort of home? And also, do we really want more children?

  Besides equal protection, there's privacy: it's not the state's business who lives with whom. There's also a bit of a 1A issue in the background here-- a significant amount of the antagonism towards gay marriage is religiously based. On the one hand, we don't want to say that religious groups can't try to influence public policy. On the other, we don't want to say that they're able to establish their rules as society's. Same issue with abortion: a lot of the opposition (fixing the start of life at conception) is religious.

  But how can you separate peoples' morality from their religion? Plus, all the available precedent goes against gay marriage: even Lawrence explicitly says this.

  But there are some areas where we don't want to tread. The CA court thinks gay marriage is fine, but can't summon the power to make it reality. And maybe this is like laws against assisting suicide-- we don't really think it's so bad, but we also don't want to put too much effort into fighting it.

  If CA recognizes gay marriage, that might box in the other states, via the full faith and credit clause. This is why NV divorce laws came to dominate those of all the states-- if MA allows gay marriage, people will just go over there to get married. If one state can oblige all the other states to tolerate something they don't like, that gives the one state too much power. Congress has passed a law saying that full faith and credit doesn't apply to due process: that law is on the books but has not been tested yet. Can congress say that?

  And maybe there is a bit of a slippery slope here... polygamy, for example. There has been some pretty harsh discrimination against Mormons in the US. And laws against incest, too-- we can see a lot of the genetic problems that might arise, and get rid of them early on. If revulsion on the part of the people is not a reason, why shouldn't the court allow it? And for that matter, why doesn't age discrimination fly, or discrimination against disabilities or obesity?

• One strategy might just be: wait for a while, and then you'll win. But maybe SCOTUS is ready to change. This is a very fluid area.
• A side issue: litigation over the outcome of Strauss has involved subpoenas for the internal memos of the folks who organized support for Proposition 8. Why? They're looking for animus.

  But if you can get those records, it's going to really chill speech. A big part of our electoral system is that your vote is secret, and you have a right to have private meetings about why you're going to vote. Also, the losers of elections will always have sour grapes-- there will be issues of intimidation, etc.

• The Obama administration has just increased the list of hate crimes. Used to be just religion and race, but now we've got gender, sexual orientation, gender identity.
• Helgeland
  The issue (can municipalities join a lawsuit against the state) is not really our issue. For us, this is more about the nature of the rights denied. It's moot at this point, since the state law has changed. But the new law is under fire, of course.
• Cohabitation attitudes are different these days, too. So customs are changing.
• Witt v. Department of the Air Force
  Dont-Ask-Don't-Tell (DADT). Generally in these cases, courts find that DADT is OK, because it was such a big compromise: the executive, the legislature, and the military are all behind it. So far, SCOTUS has said cert denied.

  Here, though DADT is found to be not constitutional. Discrimination against gays gets heightened scrutiny because of Lawrence: they didn't say it, but reading between the lines that's what the court seems to have been talking about. And DADT doesn't advance an important government interest. The dissent says this is equal protection.

  Obviously, this is discrimination, it has pernicious effects, etc.

  On the other hand, lots of rights are diminished when you're in the military: free speech, for example. Courts should defer to the military generally, but specifically on this issue-- the current military relies on voluntary enlistment, and changing DADT might tamper with this. And unit cohesion, they say. And there is a correlation between gay people and AIDS, and AIDS is really expensive. Plus, even if you think gay people are fine in the US, it's maybe going to alienate the people in Iraq or Afghanistan or Saudi Arabia where they're stationed.

  But if the military can say this, that means we're tolerating discrimination.

• Schroer
  Transgender issues; this was the 2008 exam.

  Arguments for the employer: this candidate essentially lied in the interview process, and we can't have that in such a high-security sensitive job. And also, the stakes are really high, so if military priorities prevail, the employer wins.

  But amazingly Schroer wins.