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Lecture 8

POLB30H3 Lecture Notes - Lecture 8: Strict Scrutiny, Intermediate Scrutiny, Suspect Classification


Department
Political Science
Course Code
POLB30H3
Professor
Margaret Kohn
Lecture
8

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POLB30
LECTURE 8
EQUALITY
In 1993, the state Supreme Court of Hawaii stunned the nation when it ruled that the ban on same sex
marriage violated the state’s equal protection clause
The voters of the state of Hawaii disagreed. They decided to amend their state constitution in order to
instruct the legislator to maintain the traditional definition of marriage (a union between a man and a
woman)
In 2000 the state Supreme Court of Vermont decided that homosexual couples deserved to have all of
the same protections offered to straight couples through the institution of marriage but they didn’t give
them the right to marry. They instituted something else, what they called civil unions.
Benefits of marriage: tax benefits, access to health insurance, health proxy (decide about medical care),
immigrant status
In this modern world, marriage is very much about allocations of benefits often either directly from the
state or indirectly regulated from the state
In San Francisco, in 2004 mayor Gavin Newsome ordered the city clerk to issue marriage licenses to gay
couples. On the first day over 900 couples were married and nearly 4000 marriage licenses were issued
before the California states Supreme Court voided these marriages
FOUR KEY ISSUES TO CONSIDER:
Rights and democracy: do the people get to decide?
- Who gets to decide about this controversial issue?
What is equal protection?
- Legal principle invoked when discussing something like same sex marriage
What is marriage?
Does the regulation of marriage restrict religious freedom?
WHAT IS “EQUAL PROTECTION”?
The term comes from the 14th amendment to US constitution (dismantling slavery)
- “All persons born or naturalized in the US and subject to the jurisdictions thereof are citizens
of the US and of the in where they reside. No state shall make or enforce any law which shall
abridge the privileges or immunities of the citizens of US nor shall any state deprive any
person of life, liberty, or property without the process of law nor deny to any person within its
jurisdiction the equal protection of the laws.” (equal protection clause)
State action doctrine
Plessy v. Ferguson (test case)
- Homer Adolf Plessy (7/8 white and 1/8 black)
- He rode in the white section on the train. It was made sure the train officials knew he was 1/8
black and they removed him from the train. The case went to court. 7-1 decision.
“separate but equal” is constitutional
MODERN EQUALITY JURISPRUDENCE
Reed v. Reed, 1971, extends equal protection to gender discrimination
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POLB30
LECTURE 8
- Examined the constitutionality of an Idaho law that gave men priority in serving as executors
for an estate (will when someone dies)
- In examining this, the courts asked “is this reasonable?”
- By reasonable they do not mean is this fair? They mean something very narrow. They ask is
it something that is very arbitrary? And the court said it is arbitrary, there is no real reason for
saying a man should administrate an estate and not a woman.
Three levels of scrutiny
- Strict scrutiny (highest level): law must be “narrowly tailored to further a compelling
government interest. Judges apply strict scrutiny when a law affects members of what is
called the suspect class. The suspect class includes race, religion, and national origin.
- Intermediate scrutiny: “must serve important government objectives, and be substantially
related to the achievement of those objectives”
- Rational basis test: any kind of law can be examined to see if it has a rational basis. (ex prof
parking on her own property)
“class” based analysis
- Protects minorities best interests
BOWERS V. HARDWICK: THE ISSUES?
About the constitutionality of a law that criminalized consensual homosexual sex (equal protection
case)
Whether a law criminalizing consensual homosexual sex violates the US constitution equal
protection clause:
Is there a right to sodomy?
How do we decide which rights deserve heightened scrutiny?
- Definition of right: A right is a fundamental interest that entails an obligation on others;
- 2 possibilities:
1) View that there are fundamental liberty that are implied in the concept of ordered liberty
(philosophy and theory):
2) Claim that the fundamental liberties are the ones that are deeply rooted in our nation’s
history and in our nation’s tradition:
HOW DO WE DECIDE WHICH INTERESTS DESERVE SPECIAL PROTECTION? (read above)
There are fundamental liberties that are implied in the concept of ordered liberty
Tradition: the fundamental liberties are ones that are deeply rooted in this Nation’s history and
tradition
WHAT IS “THE CONCEPT OF ORDERED LIBERTY”?
The logical structure of the court’s critique of the Harm principle
Premise: we must outlaw adultery, incest and other sexual crimes
The harm principle requires these be allowed (b/c they don’t meet the test of the harm principle)
- Adultery could be seen as a violation of contract law (marriage)
Therefore we must reject the harm principle (therefore they don’t have to accept sodomy as a
consequence of the harm principle)
BLACKMUN’S DISSENT:
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