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Chapter 5

LEGALST 39D Chapter Notes - Chapter 5: Equal Protection Clause, Rational Basis Review, Precedent


Department
Legal Studies
Course Code
LEGALST 39D
Professor
Alan Pomerantz
Chapter
5

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Legal Studies 39D
CHAPTER 5: HOMOSEXUAL SODOMY
Lawrence v. Texas
- Texass anti-sodomy law
- Bowers v. Hardwick: Court rejected the challenge to sodomy laws
o If they ruled the other way, the Court would be substituting its own
moral judgments for those of the peoples elected representatives
- Lawrence 2 arguments
o (1) in the concept of order of liberty, adult couples should be free
from unwarranted state intrusion into their personal decisions about
their preferred form of sexual expression (substantive due process)
o (2) Violation of equal protection clause creates second class
citizenship
- Texas arguments
o There is a rational basis for the law, that the ability of state to legislate
morality
o Court does not recognize a fundamental right to engage in
extramarital sexual conduct rational basis test
o Rationale of the law: (1) harm to a marital institution (2) to
discourage similar conduct
o State of TX has the right to prohibit certain conduct
Opinion: majority by Kennedy
- Issue: can TX criminalize the private consensual conduct of two persons fo
the same sex
- Bowers is struck down
o Historical grounds Bowers relied upon are more complex than the
majority and concurring opinion
- There is no longstanding history directed at homosexual conduct as a distinct
matter
- Pattern of nonenforcement
- Planned Parenthood affirmed the substantive force of the liberty protected
by the Due Process Clause, our laws give constitutional protection to
personal decisions relating to marriage, procreation, contraception, family
relationships etc.
Concurring: OConnor
- Bowers should not be overturned
- The TX statute violates the Equal Protection Clause
- Morality is not a good enough state interest under this clause
Dissenting: Scalia
- Court decided that it need not adhere to stare decisis
- The right to engage in homosexual sodomy is not deeply rooted in the
Nations history and traditions
- The Courts decision decrees the end of all morals legislation
-  Preserving the traditional institution of marriage is just a kinder way of
describing the States moral disapproval of same-sex couples
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