OTHER FORMS OF DISCRIMINATION

1
OTHER FORMS OF DISCRIMINATION

• POS 327

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DISCRIMINATION BASED ON SEXUAL ORIENTATION

• U.S. Supreme Court has only rendered three
  significant decisions on this topic.
• First case didnt occur until 1986
• Bowers v. Hardwick (1986)
• Romer v. Evans (1996)
• Lawrence v. Texas (2003)

3
Lawrence v. Texas (2003)

• OPINION OF THE CT
• Legal trends in different states and in Europe
  show recognition of importance of personal
  liberty regarding sexual relationships.
• Sodomy laws of this type cannot be justified by
  claim that a majority of their citizens think
  that homosexuality is immoral.

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Romer v. Evans (1996)

• FACTS
• Amendment 2 prohibited the enactment of any state
  or local laws prohibiting discrimination on the
  basis of basis of "homosexual, lesbian or
  bisexual orientation, conduct, practices or
  relationships.
• ISSUE
• Does Colorado's Amendment 2 violate the equal
  protection clause of the 14th amendment?
• YES (6-3)

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Romer v. Evans (1996)

• PRECEDENT
• It is a violation of the equal protection clause
  of the 14th amendment for a state constitution to
  prohibit the enactment of any state or local laws
  prohibiting discrimination on the basis of basis
  of homosexual, lesbian or bisexual orientation,
  conduct, practices or relationships.
• REASONING
• It is unreasonable to deny someone equal rights
  of political access based on their sexual
  orientation.

6
Romer v. Evans (1996)

• NON-DISCRIMINATION v. SPECIAL TREATMENT
• One of the arguments raised by the state was
  that rather than discriminating against
  homosexuals, Amendment 2 did no more than deny
  homosexuals special treatment.

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Romer v. Evans (1996)

• NON-DISCRIMINATION v. SPECIAL TREATMENT
• The court rejects the special rights argument
• While it singles out homosexuals for special
  treatment, the amendment imposes a disability
  rather than a special right.
• Other groups can get legislative bodies to pass
  laws that provided them with protection from the
  injuries caused by discrimination.
• Only homosexuals have to get a state
  constitutional amendment before they can receive
  similar statutory protections.

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Romer v. Evans (1996)

• FREEDOM OF ASSOCIATION ARGUMENT
• State also argued that the amendment would
  protect other citizens' freedom of association
  (e.g. the liberties of landlords or employers who
  have personal or religious objections to
  homosexuality).

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Romer v. Evans (1996)

• PRESERVING TRADITIONAL MORAL VALUES
• Dissenting Opinion Justices Scalia, Rehnquist,
  and Thomas argued that
• The limited denial of rights is justified under
  the rational basis test as meeting the legitimate
  government purpose of preserving traditional
  sexual mores against the efforts of a politically
  powerful minority to revise those mores through
  use of the laws.

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Same-Sex Marriages

• Several significant cases involving the legality
  of same-sex marriages have been decided by state
  courts. These decisions include
• Baeher v. Lewin (Hawaii)
• Baker v. Vermont (Vermont)
• Goodridge v. Dept. of Public Health and Opinion
  of the Justices to the Senate (Mass.)
• All ruled against the then existing or proposed
  state laws that prohibited same-sex marriages.
• All were based on state constitutions rather than
  on 14th amendment of US Constitution.

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Arguments for Same-Sex Marriages

• SYMBOLIC
• Homosexuals dont want to live as second class
  citizens. They want to have same rights and
  recognition as heterosexuals
• PRACTICAL
• Inheritance rights and child custody situations.
• Employee benefits and government benefits for
  spouses.

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Arguments against Same-Sex Marriages

• SYMBOLIC
• They have religious/moral objections and dont
  want the state to give its stamp of approval to
  such behavior.
• PRACTICAL
• They argue that homosexual couples can use
  contractual law to get visitation rights, child
  custody, inheritances, etc.

13
Goodridge v. Dept. of Public Health (Mass. 2003)

• ISSUES
• Should the Mass. marriage statute be interpreted
  as prohibiting same-sex marriages? YES (7-0)
• Is it a violation of the individual liberty and
  equality provisions of the Massachusetts
  constitution for the state to prohibit same-sex
  marriages? YES (4-3)

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Goodridge v. Dept. of Public Health

• OPINION OF THE CT
• Using rational basis test Ct. concludes there is
  no valid justification for depriving same-sex
  couples from enjoying the enormous private and
  social advantages marriage provides.
• States interests in marriage are not limited to
  begetting children.
• Marriage provides more stability for same-sex
  couples that have adopted or are caring for
  children.
• Allowing same-sex marriages does not reduce the
  value of traditional marriages.

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Goodridge v. Dept. of Public Health

• DISSENTS
• Majority bases decision of a right to marry,
  but such a right is created by the state and is
  not a fundamental right.
• States decision to prefer traditional, long
  established family structure over more recent
  untested same-sex family structures meets
  rational basis test.
• Decision to extend benefits and burdens of civil
  marriage to same-sex couples should be left to
  the legislature.

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Massachusetts Responses to Same-Sex Marriage
Court Decisions

• On 2/3/04 the Mass. S. Ct. issued an opinion
  Opinions of the Justices to the Senate that
  rejected the proposed Civil Union statute.
• PRECEDENT It would still be a violation of the
  Mass. constitution's due process, equal
  protection and Declaration of Rights clauses for
  the Mass. legislature to prohibit same-sex
  marriages even if they allowed them to form civil
  unions with all "benefits, protections, rights
  and responsibilities" of marriage.

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Opinions of the Justices to the Senate (Mass.
S.Ct., 2004)

• The four majority justices wrote The history of
  our nation has demonstrated that separate is
  seldom, if ever, equal.
• They concluded the creation of the two-tiered
  system would have the effect of maintaining and
  fostering a stigma of exclusion that the
  Constitution prohibits.

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Federal Issues involving Same-Sex Marriages

• As pointed out earlier, these cases have all been
  based on state constitutions. There have not yet
  been any decisions based on 14th amendment equal
  protection clause.
• In response to the decision in Hawaii, Congress
  passed the Defense of Marriage Act in 1996.
  Although authority over marriage is delegated to
  the states, this federal act was passed to
  prevent states that opposed same-sex marriages
  from having to legally recognize such marriages
  when they were performed in another state.

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The Defense of Marriage Act

• DEFINITION OF MARRIAGE
• "In determining the meaning of any Act of
  Congress, or of any ruling, regulation, or
  interpretation of the various administrative
  bureaus and agencies of the United States, the
  word 'marriage' means only a legal union between
  one man and one woman as husband and wife, and
  the word 'spouse' refers only to a person of the
  opposite sex who is a husband or a wife."

20
The Defense of Marriage Act

• PROTECTION OF MARRIAGE
• "No State, territory, or possession of the
  United States, or Indian tribe, shall be required
  to give effect to any public act, record, or
  judicial proceeding of any other State,
  territory, possession, or tribe respecting a
  relationship between persons of the same sex that
  is treated as a marriage under the laws of such
  other State, territory, possession, or tribe, or
  a right or claim arising from such relationship.

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Problems with the Defense of Marriage Act

• One of the problems with this legislation is that
  it appears to conflict with the Full Faith and
  Credit Clause of the US Constitution.
• Art. IV, Sec. 1 of the US Constitution states
  Full Faith and Credit shall be given in each
  State to the public Acts, Records, and judicial
  Proceedings of every other State.
• In Dred Scott v. Sandford the court ruled that
  one state did not have to accept another states
  determination of slave status, but there havent
  been any related cases since 1857.

22
Able v. United States (2nd Cir 1998)

• PRECEDENT
• It is not a violation of the equal protection
  component of the 5th amendment due process clause
  for the US military to enforce its dont ask,
  dont tell policy toward homosexuals.
• REASONING
• The Supreme Court has ruled that courts must give
  great deference to Congressional judgments in
  matters affecting the military. In these
  circumstances, judges must be particularly
  careful not to substitute their judgment of what
  is desirable for that of Congress.

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Discrimination Against Aliens
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Discrimination Against Aliens

• While aliens don't have the right to vote, and
  certain other legal rights, they are covered by
  the provisions of the due process and equal
  protection clauses.
• "nor shall any State deprive any person of life,
  liberty, or property without due process of law
  nor deny to any person within its jurisdiction
  the equal protection of the laws.
• First case to make it to the Supreme Court
  regarding discrimination against aliens was Yick
  Wo v. Hopkins in 1886 where the court ruled that
  a state couldn't prohibit an alien from China
  from starting their own laundry business.

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Cases Protecting Aliens

• Graham v. Richardson (1971) struck down laws
  denying welfare benefits to legal aliens
• In re Griffiths (1973) invalidated Connecticut
  law prohibiting aliens from practicing law
• Bernal v. Fainter (1984) invalidated Texas law
  requiring public notaries to be citizens

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Cases Allowing Discrimination Against Aliens

• Mathews v. Diaz (1976) upheld federal law that
  imposed five year residence req. to qualify for
  medicare benefits
• Nyquist v. Mauclet (1977) upheld NY policy
  prohibiting aliens from receiving certain types
  of financial aid for college.
• Foley v. Connelie (1978) upheld NY law
  prohibiting aliens from working as police
• Ambach v. Norwick (1979) upheld NY law
  prohibiting aliens from becoming public school
  teachers

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Tests Used in Alien Cases

• NOTE also that the Supreme Court has been
  inconsistent regarding which test to apply in
  these types of cases.
• In Graham v. Richardson (1971) they ruled that
  aliens were a suspect class and therefore applied
  the strict scrutiny test.
• However, in Foley v. Connelie (1978) they held
  that it wasn't necessary to apply strict scrutiny
  in situations where it is related to some
  important government function.

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Plyler v. Doe (1982)

• ISSUES
• Is the Texas law denying a free public education
  to undocumented school age children
  constitutional?
• NO (6-3)
• TEST USED
• Heightened Scrutiny

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Plyler v. Doe (1982)

• REASONING Justice Brennan (joined by Stewart and
  Stevens)
• There is no rational justification for penalizing
  the children of illegal aliens for their presence
  within the United States. The children affected
  by this law can affect neither their parent's
  conduct nor their own status.

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Plyler v. Doe (1982)

• REASONING (continued)
• There is no evidence in the record suggesting
  that illegal entrants impose any significant
  burden on the state's economy. On the contrary
  evidence suggests illegal aliens underutilize
  public services, while contributing their labor
  to the local economy and tax money to the state.
• Whatever savings might be achieved by denying
  these children education are wholly insubstantial
  in light of the costs involved to these children,
  the state, and the nation.

31
Age Discrimination

• Massachusetts Bd. of Retirement v. Murgia (1976)
• FACTS Challenge to state law mandating
  retirement of uniformed state police officers at
  age 50.
• TEST USED Rational basis
• HOLDING It is not a violation of the 14th
  amendment equal protection clause for a state to
  establish a mandatory retirement age of 50 for
  uniformed state police officers.

32
Age Discrimination

• Gregory v. Ashcroft (1991)
• FACTS Challenge to state law mandating
  retirement of state judges at age 70.
• TEST USED Rational basis
• HOLDING It is not a violation of the Federal
  Age Discrimination Act for a state to establish a
  mandatory retirement age for judges.

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Discrimination Against the Disabled
34
Americans with Disabilities Act (ADA)

• As is the case with various other types of
  discrimination, Congress has passed legislation
  to protect people with disabilities from being
  discriminated against in various settings.
• Title I prohibits discrimination based on
  disabilities in employment by private companies.
• Title II prohibits discrimination based on
  disabilities in all activities involving state
  and local governments.
• Title III covers businesses and nonprofit service
  providers that are public accommodations.

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Americans with Disabilities Act (ADA)

• An individual with a disability is defined by the
  ADA as a person who has a physical or mental
  impairment that substantially limits one or more
  major life activities, a person who has a history
  or record of such an impairment, or a person who
  is perceived by others as having such an
  impairment.
• The ADA does not specifically name all of the
  impairments that are covered.

36
PGA v. Martin (2001)

• ISSUES
• Did Title III of the Americans with Disabilities
  Act require the PGA to accommodate Martins
  disability by allowing him to use a golf cart
  rather than having to walk the course? YES (7-2)
• PRECEDENT
• Title III of the Americans with Disabilities Act
  applies to disabled people seeking to qualify for
  or participate in professional sporting events
  held on golf courses and other locations that are
  defined in Title III as places of public
  accommodation.
• Title III of the Americans with Disabilities Act
  requires that sponsors of professional golf
  tournaments allow contestants to use golf carts
  when they have medical conditions that make it
  difficult and very painful to walk the course.

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PGA v. Martin (2001)

• REASONING Opinion of the Court
• Title III of the Americans with Disabilities Act
  applies in this case because
• The PGA sponsors golfing try-outs and tournaments
  on golf courses that are defined in Title III as
  places of public accommodation.
• Casey Martin has a medical condition that is
  classified as a disability under the terms of
  Title III of the Americans with Disabilities Act

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PGA v. Martin (2001)

• Opinion of the Court (Cont.)
• It is a reasonable accommodation to allow
  disabled contestants to use golf carts when they
  have medical conditions that make it difficult
  and very painful to walk the course because
• walking is not a necessary element of the game of
  golf.
• Use of a cart does not give Casey Martin a
  competitive edge over other golfers.

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PGA v. Martin (2001)

• REASONING Dissenting Opinion
• Written by Justice Scalia and joined by Justice
  Thomas.
• Title III does not protect professional golfers.
• this section protects consumers of recreational
  services rather than employees of the golf course
  or tournament.
• While Casey Martin is an independent contractor
  rather than an employee, it is still an
  employment type situation that is covered by
  Title I rather than Title III.
• Q School is like a an employment screening
  process rather than a recreational event.

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PGA v. Martin (2001)

• CLASS DISCUSSION QUESTIONS
• What do you think about Justice Scalias analogy
  to allowing disabled child to get four strikes
  rather than three in little league baseball
  games?
• Who should be decision maker in deciding what are
  or are not appropriate accommodations?

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END OF PRESENTATION
42
Able v. United States (2nd Cir 1998)

• Although the Supreme Court hasnt dealt with the
  issue of homosexuals serving in the military,
  several District and Courts of Appeals have.
• What were the facts in Able v. United States?
• What issues were raised?

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Able v. United States (2nd Cir 1998)

• FACTS
• Challenge to US military dont ask, dont tell
  policy and other policies that provide for a
  service member's separation from the armed
  services if he or she has
• (a) "engaged in, attempted to engage in, or
  solicited another to engage in a homosexual act"
  
• (b) "stated that he or she is a homosexual or
  bisexual, ... unless ... the member has
  demonstrated that he or she is not a person who
  engages in, attempts to engage in, has a
  propensity to engage in, or intends to engage in
  homosexual acts"
• (c) or has "married or attempted to marry a
  person known to be of the same biological sex."

44
Able v. United States (2nd Cir 1998)

• ISSUES
• Does the US militarys dont ask, dont tell
  policy toward homosexuals violate the equal
  protection component of the 5th amendment due
  process clause? NO (3-0)
• A !st amendment challenge was dispensed with in
  earlier decision.
• What test was used?
• Why was that test used?

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Able v. United States (2nd Cir 1998)

• TEST USED
• Rational Basis
• Court applies the "rational basis test because
  lower court used this test and it is the test
  which the plaintiffs asked them to apply at the
  time of oral arguments.
• Within the military individual rights must of
  necessity be curtailed lest the military's
  mission be impaired, courts have applied less
  stringent standards to constitutional challenges
  to military rules, regulations and procedures
  than they have in the civilian context.

46
Able v. United States (2nd Cir 1998)

• PRECEDENT
• It is not a violation of the equal protection
  component of the 5th amendment due process clause
  for the US military to enforce its dont ask,
  dont tell policy toward homosexuals.
• REASONING
• The Supreme Court has ruled that courts must give
  great deference to Congressional judgments in
  matters affecting the military. In these
  circumstances, judges must be particularly
  careful not to substitute their judgment of what
  is desirable for that of Congress.

47
Able v. United States (2nd Cir 1998)

• REASONING (Cont.)
• Richenberg v. Perry (8th cir, 1996) and Thomasson
  v. Perry (4th Cir. 1996) cited for precedent that
  rational basis test should be applied to
  discrimination based on homosexuality. Goldman
  v. Weinberger (US S.Ct. 1986) and Rostker v.
  Goldberg (U.S. S. Ct. 1981) support deference to
  Congress in this area.
• Romer v. Evans (S.Ct. 1996), City of Cleburne v.
  Cleburne Living Ctr. (US S.Ct. 1985) and Palmore
  v. Sidoti (US S.Ct. 1984) distinguished on the
  basis that they did not arise in military
  setting.

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Baker v.Vermont (Vt. S.Ct. 1999)

• FACTS This is a Civil case in which the
  plaintiffs (Baker, et al) are three same-sex
  couples who have lived together in committed
  relationships for periods ranging from four to
  twenty-five years. Defendants are the State of
  Vermont, the Towns of Milton and Shelburne, and
  the City of South Burlington. The defendants
  refused to issue the plaintiffs marriage
  licenses. Plaintiffs claim this refusal violated
  the marriage statutes and the Vermont
  Constitution and seek declaratory judgment to
  that effect.

49
Baker v.Vermont

• ISSUES
• Does the Vermont marriage statute prohibit
  same-sex couples from being married? YES (5-0)
• Does the Vermont marriage statute violate the
  Common Benefits Clause of the Vermont
  Constitution? YES (4-1)

50
Baker v.Vermont

• REASONING Statutory Interpretation Marriage
  statute doesnt authorize gay marriages. There is
  no doubt that the plain and ordinary meaning of
  "marriage" is the union of one man and one woman
  as husband and wife. Although the Legislature had
  undoubtedly not even considered same-sex unions
  when the law was enacted in 1945, the
  interpretation they are using is consistent with
  the "general intent and spirit" of the original
  drafters.

51
Baker v.Vermont

• REASONING Constitutional Interpretation
• Vermont S.Ct. did not to treat the marriage
  statute as sex discrimination.
• Both men and women are treated the same with
  respect to their right to marry. There is no
  discrete class subject to differential treatment
  solely on the basis of sex each sex is equally
  prohibited from precisely the same conduct.
• However, a decision not to treat discrimination
  based on sexual orientation as sex
  discrimination, doesnt mean that this type of
  discrimination might not still violate the equal
  protection clause or some aspect of the state of
  Vermonts constitution.

52
Baker v.Vermont

• REASONING Constitutional Interpretation
• Under Article 7 of Vermont constitution,
  legislative classifications must "reasonably
  relate to a legitimate public purpose."
  Vermonts marriage statute fails this test in
  that it isnt reasonably related to
• linking procreation and child rearing
• safeguarding interests of children
• other recent gay friendly legislation shows
  Vermont has adopted public policy against
  discrimination based on sexual orientation.

53
Baker v.Vermont

• DISPOSITION
• Court reversed trial court judgment and retained
  jurisdiction pending legislative action.
• LEGISLATIVE ACTION
• Vermont legislature then passed civil union
  statute providing procedure for same-sex couples
  to register their union with the state and then
  receive public benefits equal to those given to
  married couples.

54
Impact of Vermont Civil Unions

• During the first year of its existence, 2,258
  Civil Unions were recorded in Vermont.
• In prior years the state averaged about 6,000
  marriages per year.
• Only 463 of them involved Vermont couples.
• None of the 1,795 non-Vermont couples took up
  permanent residence in Vermont.
• Many found that even though their home state
  didnt recognize the union, doctors, hospitals,
  and some insurance companies did.

55
Civil Unions in Other States

• Similar civil union laws were introduced in
  Rhode Island, Connecticut, New York,
  Massachusetts, California and Washington, but
  none passed.
• However, some state and local governments and
  some private corporations have extended family
  benefits to life partners of gay and lesbian
  employees.
• The Alliance for Marriage is pushing for a US
  Constitutional amendment that would prohibit
  same-sex marriages.