Dara Purvis – Law & Sexuality – Fall 2011
Levels of Scrutiny
“Those who are similarly situated should be treated alike.” –problem is how to determine what it means to be “similarly situated”
Suspect Classification:
Lines of inclusion/exclusion cannot be along lines of suspect characteristic
i. Race is never an okay reason for the gov’t to draw lines (inherently suspect)
ii. Gender is sometimes not okay [“gender plus” –Ginsburg VMI]
9th Circuit – Watkins
Whether group as suffered history of purposeful discrimination.
Whether discrimination embodies a gross unfairness that is sufficiently inconsistent with the ideals of equal protection to term it invidious (difficult to capsulize, may represent a cluster of factors grouped around a central idea).
Considering this factor makes sense, b/c discrimination against some groups exist b/c animus is warranted (i.e. burglars not a suspect class).
Factors to consider in this concept of gross unfairness:
i. whether disadvantaged class is defined by a trait that frequently bears no relation to ability to perform or contribute to society
ii. Whether class has been saddled w unique disabilities bc of prejudice or inaccurate stereotypes
iii. Whether the trait defining the class is immutable (not a hard line, e.g. religion)
Whether group burdened by official discrimination lacks political power necessary to obtain redress from the political branches of government (i.e. is the class a discrete and insular minority?)
Equal Protection/Due Process – Standards of Review – Three Tiers:
1. Strict scrutiny – race, other inherently suspect class OR fundamental right
o Regulation must serve a compelling government interest and means must be specifically and narrowly framed (i.e. the least restrictive means) to overcome substantive due process (burden on state)
o Can be relaxed—Affirmative action: specifically and narrowly framed?
a. Does not require exhaustion of every conceivable race-neutral alternative [Grutter v. Bollinger]
b. Must not unduly burden individuals who are not members of the favored group
o Rationale: strong presumption against laws that discriminate based upon immutable characteristics (usually we place legal burdens/allocate benefits based on distinctions tied to individual responsibility)
o Abortion – O’Connor in Casey – if undue burden on choice à strict scrutiny
2. Intermediate scrutiny – gender discrimination
o Requires that a regulation serve important government objectives and be substantially related to achievement of those objectives (burden on state)
o Craig v. Boren – this is appropriate level of review for sex; doesn’t matter if benign
o Intermediate “plus” – U.S. v. Virginia (VMI) – Ginsburg: need “exceedingly persuasive justification”—Rehnquist thinks that puts too much teeth on intermediate review.
3. Rational relationship – other classifications, including all socioeconomic laws, laws classifying along lines like age, disability, and sexual orientation that the Ct. does not see as inherently suspect
· Requires only a rational relationship to legitimate ends
· Can be heightened
i. If heightened, need actual gov’t purpose
ii. If not, can be satisfied by conceivable government purposes even if hypothesized after the fact (‘good enough for gov’t’ standard)
Abortion – if no undue burden on woman’s ability to make the choice
Equal Protection Test:
o Is a statute per se discriminatory? (even if yes, can still be overcome by compelling gov’t interest!)
o In its purpose?
o In its effects?
o Disparate impact – Washington v. Glucksberg(?), PWC v. Hopkins(?)
Privacy Right – Contraception, Abortion
Casey’s Two-step Framework:
Before or after point of viability?
If before, is there an undue burden on woman’s ability to make the choice?
If yes à strict scrutiny
If no à rational basis
Permissible Regulations:
Can require minors to give parental notification (but must have judicial bypass option) – Casey
2-parent notification not okay; parental involvement can’t be absolute – Bellotti v. Baird
24-hr waiting period with required counseling (burden not ‘substantial enough’)
Regulations after the point of viability (state’s interest in the fetus takes over)
Increased access or cost (if valid purpose and doesn’t impose burden on ability to make the choice)
Greenville Women’s Clinic v. Bryant (4th Circ.) – cost doesn’t affect ability to make choice
Tucson Women’s Clinic v. Eden (9th Circ.) – increased regulations and cost cause delay, and delays increase health risk.
“Foster health of woman seeking abortion” if no undue burden (i.e. if procedure is ‘dangerous’)
Recordkeeping requirement for facilities (Casey – “vital element of medical research,” even if increases cost by a slight amount (relied on in Greenville v. Bryant)
Increased travel time–Women’s Medical Prof. Corp v. Baird (6th Circ.)–Upheld requirement that clinics have transfer agreements w hospitals (even though no hospital would enter into agreement w clinic, effectively closing it). Some women may have to travel farther doesn’t mean undue burden.
Barred access to federal funds – Harris v. McRae – Hyde Amendment & Medicaid funds – govt does not have to remove obstacles not of its own creation (financial insolvency).
Impermissible Regulations:
Spousal notification (Eisenstadt – married couples have rights as individuals)
Bryant – requirement that woman disclose husband’s name upheld by 4th Circ.
Minors –
2 parent notification without judicial bypass (Bellotti v. Baird)
BUT notification of one parent + judicial bypass àokay! Casey
Carey v. Population Services Int’l – minors have privacy right including access to contraception
(?) Increased cost by a substantial amount – Casey “right to obtain” vs. Bryant
Tucson Women’s Clinic v. Eden (9th Circ.); Cf. Bryant
State Justifications for Abortion Regulations – Legitimate State Interests:
Promoting childbirth (Casey)
Promoting maternal health (Greenville)
State’s obligation to protect interest of fetus kicks in at some point (right is not absolute) (Roe)
Financial insolvency – we didn’t create the problem, so we don’t have to fix it (Harris v. McRae)
Scope of Fundamental Rights:
Privacy – 9th Amend. – Griswold – did not say a privacy right to spousal sexual relations
– Right to reasonable expectation of privacy? (Poe v. Ulman, Katz v. U.S.)
Development of “privacy” rights
· New York v. Sanger –first birth control clinic, created alliance b/w doctors and women b/c established that drs. could distribute to ‘prevent disease’ (pregnancy=disease!). Focal point: impeded doctors’ abilities to provide healthcare (depoliticized)
· Meyer v. Nebraska – started with education and prohibition on teaching German to students
· Pierce v. Society of Sisters – Ct. struck down statute requiring children to attend public schools to prevent enrollment in religious schools
· Skinner v. Oklahoma – sterilization as part of criminal sentence – struck down as ‘right to reproduce’
Poe v. Ulman – p. 9
Married couple seeking birth control information (to get past the doctor-standing hurdle)
· Ct: not ripe b/c no one had been arrested. 14th Amend. Due Process challenge.
· Harlen (dissent) – state may not regulate criminally the details of a marital intimacy that it has acknowledged along with the intimacies inherent in it.
“Reasonable expectation of privacy” – language comes from Katz v. U.S. (police practices of ‘peeping’ and arresting men engaged in homosexual activity in restrooms)
Griswold v. Connecticut – p. 12
Strikes down law criminalizing use contraceptives by married couples and anyone who counsels, aids, abets.
· First time the court says that liberty includes a right to privacy in 9th Amend.
Does not say that spousal sexual relations are a fundamental right!
· Douglas (maj) – marriage is “an association that promotes a way of life, not causes; a harmony of living, not political faiths.”
If statute bans sale or distribution of a good, Griswold may not apply, but can still lose on other grounds. See Reliable Consultants v. Earle
Possible justifications: Non-procreative sex is immoral; we want to encourage a higher population
White (concurrence) – Problem with the means—why prohibit contraceptives for sex that the state encourages (marital) to control the illicit sex?
o opt-in for abortion coverage, have to pay a small fee ($10/yr). Disparate impact/discriminatory effect (race/sex/class lines?)
Sodomy Law / Post-Lawrence
Conduct vs. Status (identity):
Boutilier v. INS – homosexual conduct is enough to legally classify you as a homosexual
DADT – rational to conclude that homosexuals will choose to commit sodomy
Substantive due process analysis has two primary features (Washington v. Glucksberg – Rehnquist):
Fundamental rights and liberties must be objectively deeply rooted in Nation’s history and tradition
Must have careful description of asserted fundamental liberty interest (issue must be very narrow!)
Limiting Interpretations of Lawrence:
Substantive Due Process vs. Equal Protection (not followed by majority)
Adult vs. child
Public vs. private
Criminal vs. civil penalty/offense (not as strong)
Marriage vs. non-marital sexual conduct
Standard of Review:
Lawrence – unclear; Ct. (Kennedy) discusses:
Liberty and fundamental rights, overturns Bowers (which said ‘no fundamental right to homosexual conduct’)—but never explicitly says that there is a right.
§ Uses Stevens’ Bowers dissent on “liberty”, not Blackmun’s dissent on “privacy” (unclear future implications)
Statute doesn’t further legitimate state interest (which would indicate rational basis)
§ Scalia (dissent): should have used rational basis, which is satisfied by enforcing traditional notions of sexual morality (as we do for incest, bestiality, prostitution, etc.)
i. Bowers – if not deeply rooted in nation’s history à rational basis
9th Circ’s “as applied” heightened scrutiny rule for Lawrence (Witt v. Air Force):
Must advance an important govt interest
Intrusion must significantly further that interest
3. Intrusion must be necessary to further (less intrusive means must be unlikely to achieve govt’s interest)
Equal Protection Arguments:
Conduct vs. status – state can’t pass legislation that specifically punishes sexual preference of homosexuals bc sexual preference, and not the act committed, determines the criminality of the conduct. (Kentucky v. Wasson)
Public morality insufficient for ratl. basis (Reliable Consultants – no ratl. connection bw protecting children and sex toy ban)
Rubenfeld “The Right of Privacy” – rejects personhood position; don’t say there is a free-standing “homosexual identity” in arguing to allow for homosexual conduct, may undermine cause b/c reinforces that sexuality is a central part of their identity–makes homosexuals self-segregate (perpetuates “us vs. them” mentality”).
Implausible to assert that an act of sex on any given occasion is necessarily fundamental in defining the person engaging in it (like saying a 15 year old who sleeps with another 15 year old is a pedophile b/c he is attracted to a 15 year old girl!)
Boutilier v. INS (SCOTUS, 1967) p 33 *conduct*/problems with defining “homosexuals”
Immigrant arrested for engaging in homosexual conduct (even though he was bi). INS ordered him deported bc should not have been able to enter the country in the first place because federal law prohibited the entry of immigrants who were afflicted with “psychopathic personality” (incl. homosexuals).
Ct: Upheld. Congress used “psychopathic personality” to include homosexuals, so since he admitted to engaging in homosexual behavior, the deportation is valid.
