Williams Majority Williams Dissent Reliable Consultants Majority FR Analysis Lawrence NOT a FR case; follow Glucksberg Lawrence as a FR case Lawrence NOT a FR case; but does protect a liberty interest Framing the Right Narrow to use sex toys)—NOT fundamental (right to be left alone in the privacy of your bedroom and personal Broad (right to engage in private intimate conduct in the home without government but not fundamental Level of Scrutiny Rational Basis Strict Scrutiny Rational sort of Governmental Interest Morality OK Morality NOT OK (whether SS or RB) Morality NOT OK (possibility that it could be OK for other laws) Law Upheld? Yes, statute constitutional No, statute unconstitutional No, statute unconstitutional 5. Public Sex *General Trend: Laws criminalizing public sex (or sodomy laws applied to public sex) upheld post-Lawrence because it is public conduct * NOTE: be an Equal Protection claim because the statutes are usually only targeted at gay men having sex in public, not straight people! Singson v. Commonwealth: Defendant solicited an undercover officer in a department store restroom. Defendant wanted to perform oral sex. Defendant argued that he couldn’t be prosecuted because Lawrence protected him by stating all sodomy statutes are facially unconsitutional. Court said Lawrence did not apply because the Lawrence limiting language specifically stated it did not apply to public sexual conduct and here Defendant was trying to have sex in public. Lawrence did not put an outright ban on all sodomy laws. Public vs. Private Factors to Look at: reasonable expectation of privacy ease of access recognized
promote nor is it the type of marriage that is likely to be reconciled. In addition, marital rape can be worse than nonmarital rape (rape by someone you trust and love) Law unconstitutional 9. S&M *Usually not explicitly outlawed but people are prosecuted for assault and battery Does Lawrence apply to laws that inhibit this? Problem: Lawrence limiting language applies to those who might be injured. Generally Courts say that people CANNOT consent to this type of conduct People v. Samuels Commonwealth v. Appleby State v. Collier Sex Same-Sex and Different-Sex Same-Sex Different-Sex D participated in S&M films where D engaged in whipping; used cosmetics where to make whipping marks (no real injury) D claims he and V were in a consensual S&M relationship; that V to be hit with a riding crop because it got V aroused and then V would let D have anal sex with him). V claims that D forced him D claims he beat V because she wanted him to do it to celebrate her birthday and that V directed him how to do it. V, a prostitute, claims
Precedential Read reading of Oncale Broad reading of Hopkins Narrow reading of Oncale and Hopkins Title VII conclusion Offensive sexual touching (ok even if some men aren’t touched—not all men in Oncale offensively sexually touched; sexual orientation is irrelevant) Gender Orientation Relationship (Rene constantly teased for being like woman, thus not masculine enough (because he is gay) so sex stereotyping at play; Sexual orientation is relevant) Need showing that treatment is “because of sex” (not just of a sexual nature like Fletcher would have) Claim Sexual Harassment Gender stereotyping harassment (hostile work environment) Neither Other Potential Theories to include Sexual Orientation “Sex” includes sexual orientation Sexual orientation discrimination is a form of sex discrimination Sex stereotyping (Hopkins) Future: ENDA (Employment Non-Discrimination Act) Not passed but constantly brought up: include sexual orientation and gender identity in federal employment discrimination law Doesn’t allow disparate impact claims or affirmative action for these groups Exemptions for religious objectors (organizations, schools, coporation, and associations) Doesn’t require couples-based benefits to be given to SS partner (not too helpful) 4. Military We more restrictions on 1st A rights for those in the military Don’t Ask, Don’t Tell (“DADT”) Policy Who’s targeted:
other courts will look to this decision.) Gov’t Rationales 1) Procreation - MSC: We don’t look to whether OS couples will procreate. Marriage about companionship. 2) Child Rearing (optimal in household) - MSC: BUT SS couples do have kids and this it harder for them to raise those kids. These children would BENEFIT if their SS parents could marry. 3) Conserving Resources (SS couples are rich and don’t need the benefits of marriage like OS couples do) - MSC: There is no relationship between financial need and marriage. We allow wealthy and - The scientific jury is still out so we can’t really test the government’s rationales yet. - Institutional Competence: For the Legislature NOT the courts to research and decide what is best Influenced by 1) and 2) in a slightly different way: Accidental/responsible procreation argument: state has an interest in channeling straight’s accidental pregnancies into marriage (private welfare system). SS couples can accidentally procreate.