Amendment

							                                       What is Sodomy?
 Anal or Oral copulation with a member of either the same or opposite sex.

Until 1961, all 50 states had some form of sodomy law.

Until last year, thirteen states criminalized private consensual sodomy,
including that conducted in the privacy of one‟s home.
             Bower v. Hardwick
• Majority Opinion:
   • The issue construed as whether or not there is a
     fundamental right guaranteed by the Constitution that
     protects homosexual sodomy.
   • Deny this is a privacy right.
   • Ancient roots of prohibitions on sodomy
   • Rational Basis is met by looking to the notions of morality of
     the people of Georgia
                       Bower v. Hardwick
• Dissent:
   • The issue is privacy.
   • Majority “almost obsessive[ly] focus[ed]” on homosexual activity.
   • There is an equal protection issue here.
   • Failure to recognize the liberty interest allows the majority to overlook the
     appropriate form of judicial scrutiny required.
       • Justice Jackson in WV Board of Ed v. Barnette: “we apply the limitations of the
         Constitution with no fear that freedom to be intellecutally and spiritually divers or even
         contrary will disintegrate the social organization…Freedom to differ is not limited to things
         that do not matter much. That would be a mere shadow of freedom. The test of its
         substance is the right to differ as to things that touch the heart of the existing order.

   • “It is precisely because the issue raised by this case touches the heart of
     what makes individuals what they are that we should be especially
     sensitive to the rights of those whose choices upset the majority.” --
                                                 Post-Bower

Anthony Powell, tried in 1997 on rape and forcible sodomy charges,
testified that the sex was consensual. The jury believed him and acquitted
on all original counts filed.

In the course of his testimony, Powell testified to having consensual oral
sex.

The trial judge required the jury to consider the "offense" of consensual
sodomy .

Powell was convicted and sentenced to five years in prison.

On November 23, 1999 a nearly unanimous Georgia Supreme Court struck
down the very same law.
  The “Unnaturalness Argument”

• Queer sex is against the laws of nature.
• Queer sex is abnormal.
• Queer sex is the use of organs that is
  contrary to their purpose.
• Queer sex is bad.
                       Lawrence v. Texas
•   Disputes Bowers‟s historical evidence: “It was not until the 1970's that any State
    singled out same-sex relations for criminal prosecution, and only nine States have
    done so.”

•   Relevance of recent developments: Recent developments “show an emerging
    awareness that liberty gives substantial protection to adult persons in deciding how
    to conduct their private lives in matters pertaining to sex.”

•   Moral opinion doesn‟t justify statute: “First, the fact that the governing majority in a
    State has traditionally viewed a particular practice as immoral is not a sufficient
    reason for upholding a law prohibiting the practice; neither history nor tradition
    could save a law prohibiting miscegenation from constitutional attack.”

•   No legitimate state interest here: “The Texas statute furthers no legitimate state
    interest which can justify its intrusion into the personal and private life of the
    individual.”
                    Scalia’s Dissent
    The statute is rational: “The Texas statute undeniably seeks to further
    the belief of its citizens that certain forms of sexual behavior are
    „immoral and unacceptable,‟ . . .—the same interest furthered by
    criminal laws against fornication, bigamy, adultery, adult incest,
    bestiality, and obscenity.”
•   Morality is basis of law: “This effectively decrees the end of all morals
    legislation. If, as the Court asserts, the promotion of majoritarian
    sexual morality is not even a legitimate state interest, none of the
    above-mentioned laws can survive rational-basis review.”
•   The lessons of history: “Whether homosexual sodomy was prohibited
    by a law targeted at same-sex sexual relations or by a more general
    law prohibiting both homosexual and heterosexual sodomy, the only
    relevant point is that it was criminalized—which suffices to establish
    that homosexual sodomy is not a right „deeply rooted in our Nation's
    history and tradition.‟”
                                                                        On November 3,
                                                                        1992 Amendment 2
                                                                        passed with 53% of

                       Amendment 2                                      the vote.




Neither the State of Colorado, through any of its branches or
departments, nor any of its agencies, political subdivisions,
municipalities or school districts, shall enact, adopt or
enforce any statute, regulation, ordinance or policy whereby
homosexual, lesbian, or bisexual orientation, conduct,
practices or relationships shall constitute or otherwise be the
                                                                  Essentially means that G/L/B
basis of or entitle any person or class of persons to have or
                                                                  people (or those thought to be
claim any minority status, quota preferences, protected status,   G/L/B) could be:
or claim of discrimination.                                       • Denied service in hotels,
                                                                  restaurants, theatres, etc.
                                                                  •refused apartment rentals, home
                                                                  loans, or credit
                                                                  • fired from a jog
                                                                  • evicted from their homes
                                                                  Without legal recourse.
                  Romer v. Evans (1996)
In a 6-3 vote, the Supreme Court found
Amendment 2 unconstitutional based on the
14th amendment.
                                              Legal Reasoning
                Gays, Lesbians, Bisexuals put into a solitary class -- denied
                legal protection from discrimination, private injury, and
                possible the protection of general laws and policies providing
                equal protection, and thus equal participation in the political
                process.

 “We cannot accept the view that Amendment 2’s prohibition on specific legal protections
 does no more than deprive homosexuals of special rights. To the contrary, the amendment
 imposes a special disability upon those persons along. Homosexuals are forbidden the
 safeguards that others enjoy or may seek without constraint…These are protections taken for
 granted by most people; these are protections against exclusion from an almost limitless
 number of transactions and endeavors that constitute ordinary civic life in a free society.”
                   Romer Dissent

Majority in error in 3 ways:
1. Coloradans are entitled to be hostile toward gays and lesbians
because homosexual conduct is thought to be immoral by the majority
of the population and such conduct undermines traditional values.
2. There is in fact a rational basis for the Amendment -- Bowers.
3. Not only is there a rational basis, but the Amendment is
“emminently reasonable” given congressionally approved precedent
in early cases -- anti polygamy provisions required for state
admission into the union.
            Q uic kT ime™ and a
          n
T IF F ( U compress ed) decompre ssor
    ar e neede d t o s ee t his pict ure.
          Same Sex Marriage
• There is no explicit prohibition against same-
  sex marriage in the law.
• There is a fundamental right to marry.
• Denying marriage licenses is an infringement on
  privacy
• Denying marriage licenses is a punishment, that
  in many states, does not accompany a crime.
• Denying marriage licenses is a violation of sex-
  based equal protection laws (in states that have
  them, e.g. Hawaii).
                          DOMAs

State attempts to define marriage as “a legal union
between one man and one woman as husband and wife”
and to define spouse as “a person of the opposite sex
who is a husband or a wife”.

         “Almighty God created the races white, black,
         yellow, malay, and red, and he placed them on
         separate continents. And but for the interference
         with his arrangement there would be no cause for
         such marriages. The fact that he separated the
         races shows that he did not intend for the races to
         mix.” Lovings v. Virginia 1967
       Massachusetts Same-Sex Marriage Ruling

•   Banning same sex marriage is unconstitutional because such a ban “violates the
    basic premises of individual liberty and equality under law.”
•   Banning same sex marriage would deny individuals tangible benefits that flow
    from marriage, including rights in property, probate, tax and evidence law.
•   Banning same sex marriage denies individuals other intangible social and
    private advantages.
•   Creates a hardship for a certain segment of society without a rational basis.
•   The nature of civil marriage, which is a secular, legal institution is to encourage
    stable adult relationships for the good of the individual, the community, and
    children.
•   More than a semantic dispute between “civil marriage” and “civil union” as it
    creates a second class status and thus represents invidious discrimination.
       Massachusetts Same-Sex Marriage Ruling

•   Who gets to use the “m” word?
•   Banning same sex marriage would NOT deny individuals tangible benefits that
    flow from marriage, including rights in property, probate, tax and evidence law if
    those rights are provided by “civil unions”.
•   The other intangible social and private advantages that go along with marriage
    cannot be provided by the courts or the legislature.
•   Federal rights that are associated with marriage cannot be provided by MA.
•   Most states will not recognize the marriage as a marriage.
•   So there is a substantive difference between marriage and union and thus there
    is a rational basis for the division.