Has Windsor established a standard of review for sexual orientation under the equal protection clause?

We discussed this in class, and couldn't find any clear language to that effect in the decision.

Nothing like "strict scrutiny" or "rational basis review" stuck out.

Here are a couple takes on that question.

Jack Balkin:

Windsor is a reminder of the fact that the scrutiny rules we teach our students as gospel are a relatively recent invention--less than fifty years old.   They were designed to make it easier to think about when laws are constitutionally unequal. But sometimes they don't really assist our understanding of the issues; they just get in the way.  In fact, you actually can explain Windsor in terms of the existing structure-- it's a "rational basis with a bite" case, and that's how the casebooks (including the one I co-author) will probably classify it. But we should be able to look behind the doctrinal superstructure, which explains little, and see the deeper principles at stake, principles that have a long history in American constitutional thought.  DOMA singled out gay people for special burdens in an important area of social life; it declared their marriages less valuable, and therefore, to that extent, it made them second-class citizens.  Even if this wasn't obvious in 1996, it is increasingly obvious today.

Ilya Solim:

As with some of Kennedy’s other important opinions, the exact meaning of this one is hard to figure out. But what he seems to be saying is that the the Congress’ pursuit of purposes beyond the normal scope of federal authority in DOMA makes the law a “discrimination... of an unusual character” and justifies imposing tougher scrutiny under the Fifth Amendment. According to longstanding precedent, the Fifth Amendment imposes on the federal government equal protection antidiscrimination principles that the Fourteenth Amendment imposed on the states. Fifth and Fourteenth Amendment precedent impose different levels of scrutiny on different types of laws, depending in part on the purposes those laws pursue. Here, Kennedy suggests that the level of scrutiny is higher if discriminatory federal laws are intruding into areas generally left to the states. Later in the opinion, he notes that ““‘[d]iscriminations of an unusual character” [require] especially require careful consideration” to determine whether they are based on “animus” against a particular class, and that “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage... is strong evidence of a law having the purpose and effect of disapproval of that class [gays and lesbians].”

3 - Summer 2 GOVT 2301 Written Assignment #3

Last week or so, the Boy Scouts reaffirmed a ban on openly gay youths and adults becoming scouts and leaders. The Supreme Court had previously argued - in 2000 - that they were free to do so under the assembly clause of the Constitution (BSA v. Dale). This challenge to the policy comes in the wake of a sea change in attitudes about gays and lesbians, but the challenge failed.

Since you are looking at civil liberties and civil rights this week, this case provides us a good opportunity to look at how these intersect. One on hand, the Boy Scouts - as an organization - claim the right to assemble as they choose (with and without whomever they choose) and they are protected by First Amendment language that restricts them from governmental interferences.

On the other hand, the Constitution also contains language that mandates that people not be denied the equal protection of the law. The scouts get benefits from government, and if they discriminate they may be subject to losing those benefits.

I want you to look - narrowly - at the Constitutional issues associated with this case and try to figure out how the courts are interpreting constitutional language in order to determine how to reconcile the competing claims of liberty and equity in this case.

This might give you a good start:

- Constitution Check: Do the Boy Scouts . . .

As with other assignments, I;m far less interested in your personal opinions on the case than in your ability to understand how the courts wrestle with constitutional language in order to address this issue.

From the HC: Mystery email tries to divide Houston's blacks, gays

Patricia Kilday Hart reports on an effort to divide the Democratic Party in Harris Count. We've noted similar efforts elsewhere around the country.

A political whodunit, in the most unlikely of races, is creating chaos and divisiveness in the Harris County Democratic Party. Or perhaps I should say it is creating more than the usual chaos and divisiveness that exists like a constant low-grade fever (on a good day) throughout Democratic Party operations every­where in Texas these days.

Monday afternoon, a mysterious electronic message blew up in Houston political circles, purportedly sent by a Rev. Willie Howard on behalf of attorney Keryl Douglas' campaign for chairperson of the Harris County Democratic Party.

Douglas, who is African-American, is challenging interim chairman Lane Lewis, who is openly gay - a fact that the probably fictitious Rev. Howard finds disturbing.

The purported pastor claims to be organizing African-American ministers to support Douglas because "her opponent is openly Gay and has already told supporters behind closed doors that the Democratic Party will endorse a Gay Marriage agenda in November … If the gays take over we are poised to lose everything we have worked for during President Obama's historic win. The Republicans will rally their troops behind a united front of making sure this push for same sex marriage is defeated."

Driving a wedge between gays and blacks

Andrew Sullivan points to a report highlighting a strategy opponents to gay marriage initiatives are developing. These can have ramifications beyond this one issue. The two groups tend to be part of the Democratic coalition. Animosity between the two could cause one to bolt the party. While they may not necessary vote Republican, weakened allegiance to the Democrats would advantage Republicans.

The report also points out ways to drive a wedge between Latinos and the Democratic Party. Other posts will focus on Republican efforts to appeal to this group - and the various difficulties it has in doing so.

Should a Gay Judge Recuse Himself From Ruling on a Challenge to California's Same Sex Marriage Law?

Linda Greenhouse weighs in.

This story touches on civil rights and elections, especially the conflict between majority rule and minority rights that is omnipresent in America's political system. It also addresses a topic we covered in 2302: how impartial is the judiciary and what legitimate means can be adopted to keep it impartial. Will the judge in question be impartial or will his decision be clouded by his personal interests. Perhaps more difficult: How would we know one way or the other?

Divisions Within the Democratic Coalition

The Democratic Party has always been more diverse than the Republican Party, and though it generally leads to more people identifying with the party - though not recently - it creates a unique set of problems. The groups within the party do not always get along, and sometimes can be hostile towards each other.

Here are two current examples:

From WOAI San Antonio, evidence of tension between Latinos and gays and lesbians: Bexar County Democratic Chair Dan Ramos is in hot water after comments referring to gays, blacks, whites, and Jews outraged the community. The Texas Democratic Party Chairman, Boyd Richie, asked Ramos to resign. Richie accused Ramos of bigotry and creating chaos since his election a year ago.

On Friday, Ramos was quoted in the San Antonio Current. "He called Stonewall Democrats Nazi termites that have wormed their way into the party hierarchy," explained Dee Villarrubia, an openly gay Bexar County Democratic Deputy Chair who was elected in June. "I'm shocked and appalled," said Villarrubia. "Dan Ramos' comments are an affront to the founding principles of our democracy."

From KTRK, conflict between Latinos and African-Americans flare up over the recent sexual assault in Cleveland: On March 10, in Cleveland, there was a rally focused on the now 19 defendants accused of raping an 11-year-old girl. The event was organized by community activist Quanell X. The defendants are black and the girl is Hispanic.

Among Quanell X's statements at the event was, "How does a child get from one community to another and nobody in her home has any idea of what's going on? Stop by her parents' house and ask a serious question about how this happened from September to November and they knew nothing?"

On Monday, a group of Hispanic advocates pushed back.

"Transferring the responsibility of 19 perpetrators to the shoulders of this child's parents is unspeakable," said Yolanda Black Navarro with AAMA. "Comments made about this 11-year-old's way of dressing, her parents' supervision and/or lack thereof, is unacceptable."

Growing Support for Gay Marriage

From Andrew Sullivan's site, evidence from the General Social Survey that, over time, support for Gay Marriage has increased substantively among the general population.

Question (from what I can tell): Gay marriage should be legal. Agree or Disagree?

Tax Bill and DADT Blocked

An example of how legislation can be stopped -- even though majorities support them -- by blocking bill form reaching the floor.

- The Senate and DADT.
- The Senate and Aid for 9/11 Workers.
- The House and the Tax Bill.

The Upcoming DADT Vote

Updates:

- Jonathan Caperhart.
- Greg Sargeant.

The Perils of Broadening Your Base

The GOP sees opportunity reaching out to the gay and lesbian community, but only at the risk of losing evangelicals.

An Inside Peek at a Policy Change

The Washington Post has a story today on how an influential interest group, The Human Rights Campaign, was consulted by the Obama Administration on what potential policy changes would best affect the gay and lesbian community, and provoke the least backlash.

A good example of an advocacy network, perhaps an iron triangle, but an unconventional one.

Same Sex Visitation Rights

A few posts below I referred to a National Journal story that pointed out the fractured nature of Obama's coalition because certain groups (Latino, women's rights, gays and Lesbians, and labor among others) are upset because he has not moved on issues important to them. I predicted he would probably start making at least token efforts to appease them. He did so to the GLBT community by issuing a directive that any hospital the receives federal funds allow full visitation right to same sex partners.

This seems to have been receive well by the community, though it is to early to tell if it repairs their relationship to Obama. It was simply executed -- I believe by an executive order though I don;t know for sure. It will also, I believe, be difficult to oppose even by staunch opponents of homosexuality because it'll just appear unseemly to not allow a person in a hospital the ability to see people they fell closest to. It's too early to judge but this seem to be an astute political move.