Gay Marriage - PowerPoint

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					  Kelly M. Taylor
AP US Government
Historically, gay marriage has not
 been an option in most states.
A Texas court case changed the
        direction of history.




      Lawrence v. Texas ( 2003)
         Lawrence v. Texas (2003)

•   Facts of the Case
•   Responding to a reported weapons disturbance in a private residence, Houston police
    entered John Lawrence's apartment and saw him and another adult man, Tyron Garner,
    engaging in a private, consensual sexual act. Lawrence and Garner were arrested and
    convicted of deviate sexual intercourse in violation of a Texas statute forbidding two
    persons of the same sex to engage in certain intimate sexual conduct. In affirming, the
    State Court of Appeals held that the statute was not unconstitutional under the Due
    Process Clause of the Fourteenth Amendment, with Bowers v. Hardwick, 478 U.S. 186
    (1986), controlling.
•   Question
•   Do the criminal convictions of John Lawrence and Tyron Garner under the Texas
    "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but
    not identical behavior by different-sex couples, violate the Fourteenth Amendment
    guarantee of equal protection of laws? Do their criminal convictions for adult consensual
    sexual intimacy in the home violate their vital interests in liberty and privacy protected by
    the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478
    U.S. 186 (1986), be overruled?

•   Quoted from: www.oyez.com
               Lawrence v. Texas (2003)
•   Conclusion
•   No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M.
    Kennedy, the Court held that the Texas statute making it a crime for two
    persons of the same sex to engage in certain intimate sexual conduct
    violates the Due Process Clause. After explaining what it deemed the
    doubtful and overstated premises of Bowers, the Court reasoned that the
    case turned on whether Lawrence and Garner were free as adults to
    engage in the private conduct in the exercise of their liberty under the Due
    Process Clause.

•    "Their right to liberty under the Due Process Clause gives them the full
    right to engage in their conduct without intervention of the government,"
    wrote Justice Kennedy. "The Texas statute furthers no legitimate state
    interest which can justify its intrusion into the personal and private life of
    the individual," continued Justice Kennedy.
•    Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor
    filed an opinion concurring in the judgment. Justices Clarence Thomas and
    Antonin Scalia, with whom Chief Justice William H. Rehnquist and Justices
    Thomas joined, filed dissents. Quoted from: www.oyez.com
•
    SIGNIFICANCE: Precedence



•  "Their right to liberty under the Due Process Clause gives them the full
  right to engage in their conduct without intervention of the government,"
  wrote Justice Kennedy.
• "The Texas statute furthers no legitimate state interest which can justify
  its intrusion into the personal and private life of the individual," continued
  Justice Kennedy. Quoted from: www.oyez.com

• States can no longer criminalize sexual intimacy by same-sex couples,
  but not identical behavior by different-sex couples, it is a violation of the
  Fourteenth Amendment guarantee of equal protection of laws.
                  Gay Marriage
• Lawrence v. Texas says
  certain activities are not
  illegal. There is no legitimate
  government interest in
  criminalizing consensual
  relations of gay Americans.

• Does the government have
  a legitimate government
  interest in preventing gay
  marriage?

• Each state may answer that
  question differently.
      How is marriage defined?
• Marriage: the state of being
  united to a person of the
  opposite sex as husband or wife
  in a consensual and contractual
  relationship recognized by law
  ( a legal definition).

• Marriage: One of the seven
  sacraments whereby a man and
  a woman commit themselves to
  each other for life
  ( Catholic- religious definition).

• There are others….
                              Texas Family Code
•   Sec. 2.001. MARRIAGE LICENSE. (a) A man and a woman desiring to enter into a
    ceremonial marriage must obtain a marriage license from the county clerk of any county of
    this state.

•   (b) A license may not be issued for the marriage of persons of the same sex.
    Sec. 2.001. MARRIAGE LICENSE.

      –      (a) A man and a woman desiring to enter into a ceremonial marriage must obtain a
            marriage license from the county clerk of any county of this state.
      –       (b) A license may not be issued for the marriage of persons of the same sex.


•   Sec. 2.205. DISCRIMINATION IN CONDUCTING MARRIAGE PROHIBITED. (a) A person
    authorized to conduct a marriage ceremony by this subchapter is prohibited from
    discriminating on the basis of race, religion, or national origin against an applicant who is
    otherwise competent to be married.




•   Officiants:
•   Persons authorized to perform weddings in Texas include licensed or ordained Christian ministers, priests, Jewish rabbis, officers authorized by religious
    organizations, justices of the supreme court, judges of the court of criminal appeals, justices of the courts of appeals, judges of the district, county, and
    probate courts, judges of the county courts at law, judges of the courts of domestic relations, judges of the juvenile courts, retired justices or judges, justices
    of the peace, retired justices of the peace, and judges or magistrates of a federal court of Texas.
    http://tlo2.tlc.state.tx.us/statutes/docs/FA/content/htm/fa.001.00.000002.00.htm#2.001.00
                   Other areas…
• Canada, Belgium, The Netherlands, South Africa and Spain- have
  legalized same sex marriage.

• The states of Massachusetts ( 2004) and Connecticut
  (10/2008)have legalized same-sex marriage via court decision.

•    Two courts, New Jersey (2006) and Vermont (1999), ruled that
    same-sex couples should have the benefits of marriage, but not
    the title.

• A California court legalized gay marriage, then the voters
  changed the CA constitution in Nov. 2008 to ban gay marriage.
  Court case pending.

• Iowa- judge allows gay marriage ( 14th amendment, voters pass
  defense of marriage act). State Supreme Court heard case
  12/2008. Decision pending.
    October 2008…Connecticut
• “Like these once prevalent views, our conventional
  understanding of marriage must yield to a more
  contemporary appreciation of the rights entitled to
  constitutional protection,” Justice Richard N. Palmer
  wrote for the majority in a 4-to-3 decision that explored
  the nature of homosexual identity, the history of societal
  views toward homosexuality and the limits of gay political
  power compared with that of blacks and women.

• “Interpreting our state constitutional provisions in
  accordance with firmly established equal protection
  principles leads inevitably to the conclusion that gay
  persons are entitled to marry the otherwise qualified
  same-sex partner of their choice,” Justice Palmer
  declared. “To decide otherwise would require us to apply
  one set of constitutional principles to gay persons and
  another to all others.”
                        http://www.nytimes.com/2008/10/11/nyregion/11marriage.html?_r=1
            A 14th amendment issue?
How is the issue of gay marriage like and not like
       the bans on inter-racial marriage?
          Loving v. Virginia (1967)
    No mixed-
    Marriage.


•   Facts of the Case
•   In 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard
    Loving, a white man, were married in the District of Columbia. The Lovings
    returned to Virginia shortly thereafter. The couple was then charged with
    violating the state's antimiscegenation statute, which banned inter-racial
    marriages. The Lovings were found guilty and sentenced to a year in jail (the
    trial judge agreed to suspend the sentence if the Lovings would leave Virginia
    and not return for 25 years).
•   Question
•   Did Virginia's antimiscegenation law violate the Equal Protection Clause of
    the Fourteenth Amendment? Quoted from: www.oyez.com


•   State- both races punished equally.
•   Lovings- a racially motivated policy designed to prevent equal protection.

•
                       Loving v. Virginia (1967)
    Decision: 9 votes for Loving, 0 vote (s) against
    Legal Provision: Equal Protection
     Full Opinion by Chief Justice Earl Warren




              Warren        Black       Douglas   Clark   Harlan   Brennan   Stewart   White   Fortas




•   Conclusion
•   Yes.( Va violated 14th) In a unanimous decision, the Court held that distinctions drawn
    according to race were generally "odious to a free people" and were subject to "the
    most rigid scrutiny" under the Equal Protection Clause. The Virginia law, the Court
    found, had no legitimate purpose "independent of invidious racial discrimination."
    The Court rejected the state's argument that the statute was legitimate because it
    applied equally to both blacks and whites and found that racial classifications were
    not subject to a "rational purpose" test under the Fourteenth Amendment.
•   Quoted from: www.oyez.com
•
 Where does Gay Marriage fall?


• Rational Basis- No fundamental right is involved.
       • Legitimate government interest.

• Intermediate Scrutiny Test- Equal Protection considered.
       • Substantially” related to an “important”
         governmental interest.

• Strict Scrutiny Test- Fundamental Right is involved.
       • Compelling governmental interest must over ride the rights of the individual
         to equal protection.
                 14th Amendment

• Strict Scrutiny: Red Flag!
• Is the most stringent standard of judicial review used by United
  States courts reviewing federal law. Along with the lower
  standards of rational basis review and intermediate scrutiny, strict
  scrutiny is part of a hierarchy of standards courts employ to weigh
  an asserted government interest against a constitutional right or
  policy that conflicts with the manner in which the interest is being
  pursued.

•  Strict scrutiny is applied based on the constitutional conflict at
  issue, regardless of whether a law or action of the U.S. federal
  government, a state government, or a local municipality is at
  issue.
• Strict scrutiny requires governmental action relate “closely”
  to a “compelling” governmental interest.
         Loving v. Virginia
• Strict scrutiny requires governmental
  action relate “closely” to a
  “compelling” governmental interest.

                      RACISM is
                      not a good
                       reason!
                  14th Amendment
• Rational Basis Test- Green Light
   – Governmental action must “reasonably” relate to a “legitimate”
     governmental interest.
   – No fundamental right is at play.

   – A judicial standard of review that examines whether a legislature had a
     reasonable and not an arbitrary basis for enacting a particular statute.
   – Courts employ various standards of review to assess whether
     legislative acts violate constitutionally protected interests. The U.S.
     Supreme Court has articulated the rational basis test for those cases
     where a plaintiff alleges that the legislature has made an arbitrary or
     irrational decision. When a court employs the rational basis test, it
     usually upholds the constitutionality of the law, because the test gives
     great deference to the legislative branch.
           Rational Basis Test

• For example, a state law that prohibits performing dentistry
  without a license deprives laypersons of their constitutionally
  protected rights to make contracts freely and discriminates
  against those unable or unwilling to obtain a license.

•    But a court would undoubtedly uphold the constitutionality of
    the law because the license requirement is a rational means of
    advancing the state's legitimate interests in public health and
    safety.
                    14th Amendment

•Intermediate Scrutiny Test-
• Yellow flag.
In the context of sex-based classifications, the intermediate scrutiny test applies not
only to the federal government, but also to state and local governments (via the
Fourteenth Amendment). In the context of sex-based classifications, the intermediate
scrutiny test applies not only to the federal government, but also to state and local
governments (via the Fourteenth Amendment).

Is the standard under the Equal Protection Clause that federal courts use to
assess the constitutionality of government action based on sex (see Gender)
and illegitimacy (see Inheritance and Illegitimacy). Also known as heightened or
semisuspect scrutiny, the standard requires that governmental action be
“substantially” related to an “important” governmental interest. As such, it
differs from the other two standards that the Supreme Court has formulated to
determine whether governmental classifications under the Equal Protection Clause
pass constitutional muster: strict scrutiny, which controls race and state efforts to
regulate aliens
               Craig v. Boren (1976)
•   The Oklahoma law at issue in Craig allowed females aged 18–20
    to purchase beer of 3.2 % alcohol. Males could not purchase beer
    until age 21. The law was challenged by two underage men, Mark
    Walker and Curtis Craig, joined by a female beer vendor, Carolyn
    Whitener. By the time the case was argued at the Supreme Court,
    both men had turned 21, so the woman's standing proved decisive
    (see Standing to Sue).
    Oklahoma defended the statute as a prophylactic against drunk
    driving, offering statistics showing that arrests of males 18–20
    outnumbered those of females of similar age by a factor of nine for
    “drunk” driving (2 percent vs. 18 percent), by a factor of eighteen
    for “driving under the influence,” and by a factor of ten for public
    drunkenness.
    Brennan ruled for the Court that, while enhancing traffic safety did
    demonstrate an important government interest, the statistical
    evidence offered by Oklahoma did not meet the other half of the
    test: the gender line drawn by the state did not “substantially”
    further the government's goal. Also, explaining that the Twenty‐first
    Amendment did not alter otherwise applicable equal protection
    standards, he rejected the state's argument that the extra
    legislative power secured by that amendment should cause this
    statute to be sustained.
             Reed v. Reed (1971)

•   This was the first decision in a century of Fourteenth Amendment
    litigation to rule that statutory gender discrimination violated the Equal
    Protection Clause.

•   In Reed the Court ignored this unbroken line of precedents and explained in
    an extraordinarily short opinion that this case of gender discrimination
    presented “the very kind of arbitrary legislative choice forbidden by the Equal
    Protection Clause” (p. 76).
    The law in question had distinguished categories of preference for selecting
    administrators of the estates of people deceased intestate. Part of the law
    preferred spouses to offspring, offspring to parents, parents to siblings, and
    so on; another preferred males to females within each category. The Reeds
    were the separated parents of a deceased son. Sally, challenging the
    statutory gender preference, sued Cecil for the right to administer an
    estate valued at less than one thousand dollars. Ruth Bader Ginsburg,
    as a lawyer for the American Civil Liberties Union, argued Sally Reed's
    case before the Supreme Court.

•    After striking down this law in Reed, the Court often used the Reed
    precedent during the following decade to strike down many other statutes
    that discriminated on the basis of gender.
Where does Gay Marriage fall?
                                 Will the
                                 Courts          Will the
                                 decide?         voters/
                                                  states
                                                 decide?


• Rational Basis- No fundamental right is involved. Legitimate
  government interest.

• Intermediate Scrutiny Test- Equal Protection considered.
  Substantially” related to an “important” governmental interest.

• Strict Scrutiny Test- Fundamental Right is involved.
  Compelling governmental interest must over ride the rights of
  the individual to equal protection.
What is full faith credit?
             • US Constitution:
             • Article IV
             • Section 1. Full faith and credit
               shall be given in each state to the
               public acts, records, and judicial
               proceedings of every other state.
               And the Congress may by general
               laws prescribe the manner in which
               such acts, records, and
               proceedings shall be proved, and
               the effect thereof.

             • Section 2. The citizens of each
               state shall be entitled to all
               privileges and immunities of
               citizens in the several states.
             •   http://www.law.cornell.edu/constitution/constitution.articleiv.html
  Is this a 10th amendment issue?
• Amendment X:
• The powers not delegated to the United States by the
  Constitution, nor prohibited by it to the States, are reserved
  to the States respectively, or to the people.

• The Constitution was written under what’s called “positive
  grant.” What this means is quite simple. The federal
  government is authorized to exercise only those powers
  which are positively granted to it by the Constitution. If
  a power is specifically listed in the Constitution, the federal
  government can do it.

• States make marriage and divorce laws.
     Consider
• Constitution:
  – Full Faith Credit ( IV)
  – 5TH Amendment
     • Due Process
     • Life, Liberty, Property
  – 10th Amendment
     • State constitutions
  – 14th Amendment
     • Equal protection/ Due
       Process
  – Tests used by courts
  – Precedents
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mponents/Art/USNEWS/061025/AP_GA
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