Romer v Evans:The story by the National Legal Foundation

Suzanne Goldberg: Lambda attorney; counsel in Romer

Most Constitutionally Vulnerable?

• Exclusion from US Armed Forces 21

• Only homo sodomy is criminalized 38

• Only homo solicitation is criminalized 33

• Exclusion from opp’ty to adopt children 11

• Exclusion from city’s police/firefighters 23

• Exclusion from legal marriage and its consequences 15

Bases for constitutional Claims

• Equal Protection

• Due Process

Rational Basis

• High deference to state re– Interest– “fit”

• Economic and social legislation– Physicians v chiropractors

• Almost always upheld, but see– Reed– Romer

Strict Scrutiny

• Law must be necessary to a compelling state interest

• Race

Intermediate Scrutiny

• Law must be substantially related to an important government interest

• (VMI formulation): justification must be “exceedingly persuasive”

• Sex/Gender

Choosing a level of scrutiny

• Classification– Treat likes alike– Conduct (modern) not status criteria– Exclude use of prejudice

• Class– Exclude use of subordination– Rawls/ “veil of ignorance”– Avoid conflict of organized social groups– Carolene-products

• Discrete and insular minorities/ lack of political power

• Fundamental Interest??

Due Process: Interest protected by Substantive

DP?• Importance to individual?

• Part of a “right of privacy”?

• Link to specific constitutional rights?– Fourth Amendment– First Amendment

• Deeply rooted in history and tradition?

• Implicit in the concept of ordered liberty?

Balancing State Interests

• Level of scrutiny

• What state interests advanced by law?– Legitimate?– How important?– “Fit” between law and interest

• Overinclusiveness and underinclusiveness

Key precedents re sexual orientation

• Hardwick

• Romer

Gender, Sex, Sexual Orientation

• What qualities do gays/lesbians have?– Dress– Self-presentation?– Activities– Cultural Interests

Gender, Sex, Sexual Orientation

• Gender expectations and children?– Dress– Self-presentation?– Activities– Cultural Interests

Homophobic Language??

Ninia Baehr & Genora Dancel