Sex Law Test 2

Hoey Subcommittee Report 1950:

"indulgence in acts of sex perversion weakens the moral fiber of an individual to a degree that he is not suitable for a position of responsibility." "The presence of homosexuality/inversion could contaminate others" "The social stigma connected to homosexuality/inversion creates a weakness that can be exploited"

Unspecified Future Harm Argument

'The Court does not need to wait, though, till the damage is done...

Difficulties with considering women a suspect class

- Conceptual - They can, in theory, vote their way out of oppressive policies if they need to. - Reality • Women do actually differ from men in some undeniable ways. They give birth, for example. • So if we consider women a suspect class, are we going to subject laws that provide aid to women for pregnancy assistance (but not to men) to strict scrutiny? • What about separating sports teams by gender, bathrooms, combat assignments, locker rooms? • greater physical differences between men and women than there are between races

The rise of the "no difference" debate

1985 to present • The initial studies (>30 by 1985) were often small, theory generating and lacking in longitudinal data. • By 1995 at least 93 additional studies were published, featuring larger sample sizes and longitudinal data. also accumulated a wealth of qualitative interviews. • While these studies differed widely in discipline, methodology and focus, they formed a near universal consensus: children raised by gay male or lesbian parents fared just as well, if not better, than children raised by "traditional" heterosexual parents (on the welfare prong of the debate).

Context to Franke's SSM article

2006 • Obergefell was still nine years away. • 2 states have civil unions. Massachusetts, NY and California allow same sex marriage • California would overturn the decision that recognized SSM with proposition 8 in 2008 - which amended the constitution to bar SSM. That amendment would later be found unconstitutional in federal court (2010)). • Court decisions were going both ways. • 42 states had passed "mini-DOMAs" • G. W. Bush had just won re-election, and opposition to same sex marriage was a prominent plank in his reelection effort. • Some E.U. countries had recognized SSM, in addition to South Africa. • the movement was gaining steam and the legal landscape was churning. • the LGBTQ+ rights movement became focused on the fight for marriage equality. Before DOMA (at the Federal Level) this was not the case.

Statement of Professor William N. Eskridge (to the House Committee on Education and Labor) (2009)

A) The early period: 1917 - 1945 B) The Rise of the "Straight State". C) 1969 to present: The decline of the anti-homosexual state.

What 'Because of Sex' Really Means - The Atlantic

Bostock v. Clayton County • Three employees were fired for having a non-heterosexual orientation. One was fired for informing her employer that she intended to transition to a woman. • Sued under the 1964 Civil Rights Act, which prohibited employment discrimination "because of sex." • Gorsuch concluded that Title VII of the CRA forbids discrimination against LGBTQ employees. • The heart of it - sexual orientation and gender identity are both necessarily related to sex • Alito and Kavanaugh argue that being "gay" is completely separate from being men or women. • The employer objects to the fact that they are gay. So two men, one gay and one straight, are not "identical" - as Gorsuch maintains. • Sexual orientation and gender have absolutely nothing to do with "sex discrimination."

The Rise of the "Straight State".

Communities of "perverts, fairies and degenerates" began to manifest (they became visible) in large American cities around 1917 • World War I brought many young people together, into the cities. • This is conjunction with industrialization created a dense urban crowding that allowed for subgroups to find each other and interact in relative obscurity. Reaction: The Comstock Laws • Anthony Comstock, a US postal inspector, and influential "anti-vice activist" (successfully) pushed for the legal persecution of sexual/gender minorities, under the banner of maintaining, in effect, a "straight state." The military played a large role in this push Scientific community also participated Sex and Gender Minorities were also seen as threats to the state Employment Discrimination

Article on the Russian Orthodox Church and the Scourge of Gay Pride Parades

During a sermon in Moscow, Patriarch Kirill specifically linked the "evil forces", out to destroy the unity between Ukraine and Russia, to gay pride events. The "test" of which side you are on, said Kirill, is whether your country is willing to hold gay pride parades

Mark A. Leinauer: The Moral Sex

Even within the Nexus Test, gay male and lesbian parents faced numerous concerns from the judiciary Immoral Exposure (26% of all cases) Societal Morality (21% of all cases) Unspecified Future Harm (14% of all cases) Illegality (13% of all cases) Stigma (9% of all cases) Orientation/Gender Modeling (4/4%) Disease (2%) Sexual Abuse (1%)

How did the arguments put forth from the courts (re. homosexual parents) fall short of the Nexus Test, Equal Protection, the right to privacy?

Nexus Test Many of the arguments failed to find evidence of an actual, concrete harm. o The child's moral compass will be damaged (is there any evidence of this?) o There will be a "future harm" (what future harm)? o Societal morality will be damaged (but this is not a harm to the child). Equal Protection: Many of the arguments appear to fail equal protection analyses. • Exposure to common place signs of affection. Hugging, kissing, holding hands. These are regularly listed as improper exposure when conducted by a gay parent, but they go without notice when conducted by a heterosexual parent. But judges are afforded wide discretion here and because no two cases are exactly alike, it is typically hard to say that an identical case with heterosexual parents would be treated differently. Right to Privacy (right to raise one's child): • Is it the court's place to determine what morals/sexual orientation/gender role beliefs should be imparted to children? But again, courts are granted wide discretion - They are, in effect, acting as the child's parent i custody hearings. state is in a stronger position to assert subjective preference for the child's upbringing.

Brandenburg v. Ohio

Other relevant first amendment case law (non-school setting) • Ohio statute broadly prohibited the mere advocacy of violence. • Court ruled that the government cannot prohibit individuals from engaging in "advocacy" of illegal conduct, "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." • similarity with Gay Lib v. University of Missouri (1978), Gay Students Organization of the University of New Hampshire v. Bonner (1974).

Moynihan moment

Related to Franke article • assumed notion that the only proper way to raise a child is in a traditional family. • (In regard to the Black community in the US) it resulted in policies that penalised and demeaned single mothers (forced women to put their husbands on birth certificates, encourages marriage through tax incentives and through "education.") • Instead of helping them, marriage was encouraged. • Placed the blame on their own moral failings, rather than systemic forces. • Much of the arguments for SSM marriage adopted this logic. That the children would be harmed if raised by an unmarried gay male or lesbian women or by an unmarried gay couple. Or by a lesbian mother, her parents and her friends. • There is a kernel of truth in this: the legal benefits of marriage (inheritance, hospital authority etc.) • But also problematic.

Obergefell v. Hodges dissent

Robert • not personally against same-sex marriage. doesn't say he's for it either. • this is a matter for the legislatures of all 50 states, not the judiciary. • Decision stunts democratic debate on this issue Distinguishes from Loving (right to marry for interracial couples) on 2 grounds: • Loving was about the state denying people the right to marry while this is about changing the definition of marriage • the court should be especially cautious (or more accurately, restrained) when declaring substantive due process rights. They're more open to judicial abuse. • attempts to avoid a full attack on substantive due process rights (rejection of Loving and Grislwold) argues "singular" understanding of marriage - as an institution to support procreation - cannot be fulfilled by same-sex couples. BUT marriage has never been EXCLUSIVELY about childrearing - elderly couples. Can't marriage have more than one purpose? implies that age-old discriminations pass rational basis merely because they are age-old - going farther than Burke argues that the Court will lose legitimacy because of Obergefell- but one could argue that it gained more legitimacy than it lost. very popular. argues that Obergefell will "cast a cloud" over the recognition of same-sex marriage -came about judicially rather than through the democratic process. doesn't seem to have. Public approval of SSM has skyrocketed

The Conservative Case for Gay Marriage, by Ted Olson

Same Sex Marriage as a Conservative Goal

Gender Inversion and Separatism

Sedgwick: The Epistemology of the Closet • Gender inversion holds that gay men are best conceived of as "female souls trapped in a male body" (and vice versa for lesbian women). • Gender separatism conceives of the gay individual as an individual who, quite understandably, prefers traits that are most like their own. It makes sense, from this angle, that a woman would be attracted to a woman. They are not misplaced souls, they are rational souls who simply like their own gender traits.

The universal / minority bind

Sedgwick: The Epistemology of the Closet • Minoritizing view of homosexuality: There are some (small) set of people who really are "gay." • Universalizing view: sexual desire is a powerful solvent and there are some situations that might tempt normally heterosexual men towards homosexual acts or desires. In this sense all people are really heterosexual and homosexual acts are simply momentary deviations. • The universalizing view also tend to arise more often when children are concerned, conveying the notion that society believes childhood sexuality to be more pliable and less "concrete" than the minority view would have us believe. • This can be seen in the many legal restrictions intended to keep children away from gay men and lesbian women (they were barred from teaching etc.). • While some of these stemmed from a fear of molestation (predation) it was also based on a pronounced fear that gay men and women would "recruit" young children. This evinces a universalizing view. • This charge was a favorite of Anita Bryant in the 1970s ("As a mother, I know that homosexuals cannot biologically reproduce children; therefore, they must recruit our children"). • Is Anita Bryant suggesting that only gay men and women have gay children?

Rosky: The State promotion of heterosexuality and traditional gender roles is barred the constitutional guarantee of equal protection

State v. Limon • A Kansas Supreme Court case in which a state law allowing for lesser punishment for statutory rape convictions if the partners were of different sexes than if they were of the same sex was found unconstitutional under both the federal and Kansas state constitutions. • Kansas law applied a "Romeo and Juliet" exception when the offender in a statutory rape charge was only a few years older than the victim (i.e., the age of consent is 16; the offender is 17 and the victim is 15). • But it DID NOT allow this exception when the sexual activity at issue was same-sex sexual activity. • Kansas argued that the statute only discriminated against behavior or conduct. (this case was initially before Lawrence). • But Limon argued that the law actually discriminated against a group of people, namely those with a homosexual orientation. • If you are arguing for a right to engage in certain same-sex conduct then you are making a substantive due process claim. You're arguing that there is some conduct being prohibited that is protected by a substantial liberty interest (privacy etc.) • If you argue that the law discriminates against those with a homosexual orientation then you are making an equal protection claim (the law treats one group differently than the other). • most restrictions against "homosexual conduct" are also restrictions that burden only those with a homosexual orientation. • So many substantive due process claims in this area can also be framed as equal protection claims.

Pauli Murray

Student at Yale Law School. Wrote an influential memorandum arguing that the equal protection clause should treat sex discrimination like race discrimination (demand heightened scrutiny review). Both, she argued, rested on a natural law based assumption of inherent difference. When applied to gender and sex, this is frequently described as "gender essentialism" or "sex essentialism." Her arguments found their way into the congressional debates on the 1964 CRA

How might conservatives who objected to same sex marriage respond?

The Burkean notion: Fence theory. We should assume that the status quo has some wisdom it in, and only make changes when we are absolutely certain (Shifts the burden). The concern is that there will likely be unintended consequences. The Durkheimian / Devlin notion.

Franke and the Court's power to declare sex

The Courts have assumed the power to declare sex, and when they do they treat performative (normative) claims as Descriptive Claims. • There are ambiguous cases. • In these cases courts have held that the announcement of the birth assistant, who decided sex at the time of birth, is controlling. • U.S. courts have been reluctant to contradict that later (this is changing now) • Courts then treat these "performative" claims (I decide and announce the sex) as descriptive claims (I merely describe the obvious, and unquestionable reality of the sex). • Franke Notes that this is similar to announcements of race. In the U.S., "one drop rule".

Rosky's affirmative claim that children have a "right to be queer."

The State promotion of heterosexuality and traditional gender roles in children is barred by the constitutional guarantee of free speech. • When someone announces that they are queer/gay etc. it is a literal act of speech. It can be a statement of identity, a statement of belief or even a political statement. • speech need not be spoken - Kissing someone of the same-sex can be viewed as an expressive act. It is an act that announces something just as much as someone who says, "I am queer." It can also be viewed as a political speech in the right context. • "expressive action" has been recognized as speech before. - The "black power salute," for example, a well-recognized form of political speech since the 60s. Kneeling during the national anthem in contemporary America. Burning the American flag. But these are children. • schools obviously have some right to limit student speech in a school. They have to maintain order and actually educate. They are also governing children. But the students have some right to express themselves as well - What should the line be?

Societal Morality Argument

The courts of this state have a duty to perpetuate the values and morals associated with the family and conventional marriage, homosexuality is and should be treated as errant and deviant social behaviour

The early period: 1917 - 1945

Walt Whitman • was a clerk at the "Indian Bureau" • His boss found a copy of "Leave of Grass," his most famous work, on his desk - fired him on the spot (appx. 1865) • It contained a celebration of the entire American fabric, including (it was suggested) sexual minorities. • He believed in the concept of "adhesion," a mutual devotion among men (again, including - it was suggested - love of all varieties). - Similar to the celebration of "benign sexual variation" that Rubin called for many decades later. • The concept of "homosexuality" was not known in Western civilization at the time. • Men who enjoyed sex with other men (it was lesser known amongst women) were generally lumped in with nonheteronormative variations such as "perverts, inverts, degenerates or fairies." o Cross-dressing, atypical gender expression, pedophilia, bestiality, consumers of pornography. • The first known use of the term "homosexual" is attributed to Karoly Maria Benkert, a German Psychologist who used the term in the late 1890's. • In fact, what most inflamed people about Leaves of Grass was Whitman's celebration of female sensuality.

1969 to present: The decline of the anti-homosexual state.

While there is still considerable bias (legal and otherwise) against sex and gender minorities the push for a "straight state" started to decline in the early 1970s • Gradually state and federal prosecution diminished • Licensing prohibitions were rescinded. • Criminal prosecutions ceased altogether after Lawrence v Texas. • Bill Clinton ushered in "don't ask don't tell" (which, though problematic was still a progressive step). • Obergefell 2012

Girgis & George, What is Marriage

a philosophical attempt to justify, through reason alone, a state ban on same-sex marriage. frames the argument as a debate between two views • The conjugal: o the traditional view that marriage is a union of two opposite gendered, fulfilled SOLELY by procreative potential. • The Revisionist: o a new view - a bond between two people based on love and a desire to commit to sharing life's burdens together. o doesn't require the couple to possess procreative potential major objection to their argument is that the US has always allowed & recognised marriages for obviously infertile couples (eg. the elderly). Isn't the "revisionist" view actually the traditional view? Addresses this with a baseball analogy. infertile couples are still "married" because they go through the motions of a procreative act but, like a bad baseball team, simply fail to "win the game." Either way - does traditional alone satisfy rational basis? slippery slope argument - if one accepts the "revisionist view" of marriage then there is nothing stopping polygamous marriage. "rational reasons" to justify continued exclusion: • "studies" support that children fare better when raised by opposite gendered parents • In reality, children raised by same-sex couples fare just as well • marriage will become less meaningful and that less people will seek marriage accordingly.

Homonormativity

a politics that does not contest dominant heteronormative assumptions and institutions -- such as marriage, and its call for monogamy and reproduction - but upholds and sustains them while promising the possibility of a demobilized gay constituency and a privatized, depoliticized gay culture anchored in domesticity and consumption an implied "standing down" of the LGBT community, from o Challenges to monogamy. Challenges to sexual expression and sexual hierarchies. Challenges to gender. Challenges to child rearing.

Warring with Wardle

article defending the previous consensus and arguing with Wardle's attack • Critics argued that Wardle's argument was muddled in the "gender and orientation outcomes" prong of the debate: • Specifically, Ball and Pea note that Wardle muddies his comparisons, often conflating exclusive homosexual orientation to: o the desire to perform a solitary homosexual act (assuming, in other words, if children express a momentary fantasy or desire, they will grow into an exclusive homosexual orientation), o the report of a single homosexual act. o if the data is categorized properly there is no evidence that the children of gay parents are more likely to express a homosexual orientation or a non-traditional gender role. • On the welfare prong of the debate: o There did appear to be some evidence that children raised by gay parents are more likely to experience depression and report low self-esteem in their younger years. o But aside from that critics noted that there was very little evidence that the children of non-heterosexual parents experienced negative life outcomes.

Lynn Wardle "The Potential Impact of Homosexual Parenting on Children" (1997).

challenges consensus • Wardle attacked the consensus view - challenging the methodological rigor of its foundational research. argued that it suffered from small sample sizes, biased samples, improper controls, a failure to control for relevant variables, an absence of longitudinal data and a social desirability bias. • At this time the same-sex marriage debate was just beginning. • Baehr v. Llewin came down from the Hawaii appellate court in 1993 -brought the possibility of same-sex marriage to the fore for the first time. • Beahr v. Miike, the eventual Ha. Supreme Court case was handed down in 1999. • brought the "no difference" debate to the attention of academia • Wardle's critique was at least partially correct on nearly all of these points, but he went further. • argued that the academy not only failed to support its current consensus but that it had actively ignored opposing evidence. • Wardle's accusation was two-fold: • (1) the academy ignored evidence that children raised by non-heterosexual parents were more likely to develop "homosexual interests or behaviors," - implies that the development of "homosexual interests or behaviors" is a negative outcome • (2) the academy ignored data indicating that these children suffered comparatively negative life outcomes in the more general sense.

Issues with the Regnerus Study

dependent variables: • debatable if some of these outcome are truly "negative." • At the very least it requires a clear subjective value assertion to label them negative. • Specifically: o marijuana use o lower household income o more likely to watch TV for long periods o more sexual partners than average o more likely to cohabitate prior to marriage methodology: • His latter cohort (the non-heterosexual parenting cohort) includes single parents and parents who have divorced • "control" (the heterosexual parenting cohort) features children raised in intact (never divorced) marital families. • Critics argue that Regnerus has measured the impact of divorce and single parent parenting rather than the impact of non-heterosexual parenting. other variables that might explain some of these "negative" outcomes: • negative mental health consequences could be attributed to the increased societal scorn that these children may face

The Early Academic "No Difference" Debates

early 1970s to mid-1980s • The first identifiable custody battle featuring a gay parent did not occur until 1951. • only 21 custody cases in the judicial decisions available through Lexis and Westlaw that predate 1970 • Initial legal analyses did not focus on the relative parental fitness of these parents in reality. • Rather these legal scholars focused on the legal evaluation of these parents, the trends scholars perceived and the unique legal issues these parents faced. • Initial studies on the impact of non-heterosexual parenting on childhood development and family structure in Psychology and Sociology were likewise limited, focusing mostly on the qualitative analysis of small convenience samples and recommendations for related clinical care.

Tinker v. Des Moines Independent Community School District

free speech in the context of students • School barred students from wearing black arm bands in protest of the Vietnam War. • Court held that a school could not restrict a student's speech based on "a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." • school was required to show that the student's speech would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."

Healy v. James

free speech in the context of students • State College refused to recognize a campus chapter of the Student for a Democratic Society. • School argued that that SDS has been disruptive on other campuses and that they expressed views "antithetical to the school's policies." • Court held that a state college could not restrict a group's speech and association rights "simply because it finds the views expressed by [the] group to be abhorrent."

Orientation Seduction

more intentional than modelling. The parent is actively trying to mold the child's orientation • This blends into the age-old claims of "recruitment." • This can also blend into concerns regarding potential sexual abuse

Normative and constitutional critiques of Wardle and Regnerus

normative: • there's nothing wrong with developing a non-heterosexual orientation or a non-traditional gender expression and thus the entire argument on the gender and orientation prong is misguided. constitutional: • To be fair, Regnerus and Wardle were not making legal arguments • But, to many, the point of their arguments was to support the policy of excluding either same-sex marriage or same-sex adoption. • Eskridge, Rosky and others take issue with the underlying assumption that the state has a legitimate interest in the promotion of heteronormativity • Craig v. Bowen (and Hopkins) appear to mandate heightened review for the state promotion of gender roles. • Romer v. Evans arguably prohibits government action that reflects animus towards sexual minorities • Lawrence v. Texas may mandate strict scrutiny for laws discouraging private, consensual homosexual behavior • The substantive due process right to marry appears to mandate strict scrutiny when reviewing the exclusion of same-sex couples from marriage (this is what Obergefell would ultimately hold). • The substantive due process right to privacy appears to mandate strict scrutiny when reviewing state actions that limit a parent's ability to educate and mold their children. • In a related point, some scholars argue that the state enforcement of heteronormativity violates the first amendment.

Orientation Modeling

o Implies the universal view of homosexuality o assumes that developing a homosexual orientation is a "harm" that should be avoided In some arguments, the gay parent simply influences that child through their very presence. There is no "intentional" effort to shift the child's orientation. Raises legal issues: • Several scholars have argued that sexual orientation should be as a variant of free speech • recurring "right to raise one's child" issue. case law holding that it falls within the right to privacy to choose how to educate and raise one's child. Is not the means by which a parent instructs their child about sexual orientation within the ambit of "educating" one's child.

Rosky and factual v constitutional domains

specifically states that he is moving this argument from the factual domain to the constitutional domain • The factual argument argues that it simply isn't true that "gay parenting" produces non-heteronormative children • The vast majority of non-heteronormative adults were raised by straight parents and the vast majority of non-heteronormative parents raise traditional, cis children. • moving the argument to the domain of rights changes the conversation and can be a powerful rhetorical technique.

Homonationalism

the favorable association between a nationalist ideology and LGBT people or their rights. refers to the processes by which some powers line up with the claims of the LGBT community in order to justify racist, xenophobic and aporophobic positions, especially against Muslims, basing them on prejudices that migrant people are homophobic and that Western society is egalitarian. Thus, sexual diversity and LGBT rights are used to sustain political stances against immigration, being increasingly common among far-right parties

Goesaert v Cleary

• All bartenders must be licensed. But women cannot be licensed unless they are the "wife or daughter of the male owner." • Plaintiffs argue that the statute is unconstitutional via the equal protection clause because it impermissibly discriminates against women who are NOT "wives or daughters" of a male owner. • Majority did not view this case as a hard call - obviously permissible • Determined that allowing women to bartend could "give rise to moral and social problems against which [the State] may devise preventive measures." • Sexism in decision - Women bartenders may be placed in compromising moral situations, for which they will be too frail to resist. Nearby male relatives will mitigate this. • Said Michigan COULD ban all women from bartending if they wished • Rational basis review - Gender not yet a suspect class

Christiaan Rapcewicz, Homonormativity, Homonationalism and the Other 'Other'

• By adopting same sex marriage as the goal of the LGBTQ+ movement, the movement has agreed to join, and produce, heteronormativity. • More radical notions of sexuality (polygamy, polyamory, ethical non-monogamy, sex positivism, asexuality etc. etc.) • It leaves all those who want that behind. Now the poster peoples are a monogamous, life committed partner, typically white and relatively upper class. Often religious. The very sort of person that the conservative majority lauds in normal situations. • The others become "outsiders" or "bad gays." • "queer spaces" need to be continually challenged / interrogated. • The community needs to be more selective in its allies. If a possible ally cannot accept ALL of us then they should not be an ally.

Katherine Franke, The Politics of Same-Sex Marriage Politics central thesis

• By adopting, almost unanimously, the fight for same-sex marriage, the LGBT community is choosing the heteronormative model for relationships, love and intimacy ... and leaving other models by the wayside. • adopting the notions of monogamy, two person couples (as opposed to more than two), single life. forgoing more radical views of sexuality and its proper place, proper expression. • It is adopting the notion that relationships need the imprimatur of the state. • shoe horns LGBT political identity into the nuclear family model. It says, "accept us," we're just like you. • She laments that the LGBT community, in the past, celebrated diversity and radical expression on these points. •. The "logic" of marriage - in ensuring "responsible" sex and that unplanned children have stability - does not apply to gay men and lesbian women. Makes some generalisations in saying that LGBT individuals don't usually have children by mistake Same Sex Marriage as a Conservative Goal.

Romer v. Evans

• CO passed an amendment to the constitution that prohibited gay males and lesbians from obtaining "special" protection through the legislature or the courts. In effect, anti-discrimination ordinances that protected LGBT would be illegal. • Prompted by outrage stemming from several "progressive" Co. cities (Aspen, Vail...) had passed antidiscrimination ordinances that protected LGBT. Held: • Amendment violated equal protection. • It forbids gay males and lesbians, but no others the right to petition for anti-discrimination protections in the law. Standard of review: • They say they use rational basis. • But.... actions or policies borne out of animus to a particular group may fail rational basis for that reason. • This has loosely been defined as "rational basis with bite." - a slightly more strenuous level of review than rational basis. • Must the target be a group of people who have historically been oppressed? • Once again, this is a Kennedy decision.

Obergefell v. Hodges

• Couples in multiple states challenged their exclusion from marriage (the cases were consolidated) Held: (Kennedy) • Marriage is sacred and central to human existence • Petitioners seek to join in marriage, not to denigrate it. • Marriage has changed dramatically over the years. It is not a fixed institution. How? o Once understood as an arrangement between parents. o wife used to be considered property of the husband o changes have strengthened marriage, not weakened it. • Society's view towards sexual orientation has also changed. • *Under due process no state shall deprive any person of life, liberty or property without the due process of law. ... These liberties extend to certain personal choices central to individual dignity and autonomy. • The right to marry has long been recognized as one of these protected liberties (it receives strict scrutiny) • All of the reasons that compelled this Court to recognize the right to marry as a fundamental (substantive due process) right hold with equal force for same-sex couples. • Held: the right to marry is a fundamental right (deserving strict scrutiny). Here the state's decision to limit marriage to opposite sex couples fails to pass strict scrutiny.

Defense of Marriage Act

• Defines marriage for federal purposes as between one man and one woman (only) • allowed states to refuse to recognize same-sex marriages from other states. • The Constitution requires each state to extend "full faith and credit" to laws from other states. Thus, they are typically required to accept marriages from other states. This statute purported to make an exception. • never clear if the statute was constitutional. Prompted by: • Beahr v. Lewin (later Beahr v. Miike). Hawaii supreme court held that it was unconstitutional to restrict marriage to opposite sex couples. 1993. • This set off a national firestorm. The very idea seemed absurd to the vast majority of the country, and there was a real fear that other states might do the same (or that couples would marry in Hawaii and then return to other states).

How have courts traditionally conceptualized gender, orientation, and identity?

• Despite knowledge that all three are distinct and appear to exist on a spectrum, the Court fails to separate the three and tends to treat the whole as a binary. • The "one drop logic." • Bi-sexual erasure.

United States v. Edith Windsor

• Edith and Thea Windsor were legally married according to the state of New York (NY allowed same sex marriage). • Thea died and left valuable real estate to Edith. If Thea was recognized by the US government as a deceased spouse, Edith would be able to claim a deduction on her taxes for the real estate gain. But per DOMA, Thea was not recognized as a spouse. • She challenges the law as unconstitutional Held: • The regulation of marriage has always been a power reserved to the states (the constitution does not grant the federal government any authority over marriage). • New York thus had the authority to decide that the Windsors should be able to marry. • The Federal Government then took that status from the Windsors. In other words, this is a taking. • The clear purpose of DOMA was to deprive same-sex couples of benefits that their states deemed them worthy to share. It targeted same-sex couples and no one else, and signaled them out for negative treatment. Passed out of animus • When determining if a law is passed out of "animus" the court looks to: o Is the discrimination unusual (in this case yes it is). o Is it singling out an unfavored group for mistreatment (yes it is) • The court also spends a great deal of ink highlighting the fact that DOMA operated to "demean" same-sex couples. To deny their dignity. appears to use standard equal protection analysis, and then apply the "rational basis with bite" level of review • BUT.... Kennedy also talks about dignity, and the centrality of marriage to people's lives. As Scalia notes in his dissent, that sure sounds is if Kennedy believes that DOMA violates some substantive due process right

Rosky, No Promo Hetero

• Every child has a constitutional right to be queer (affirmative) • The State has no legitimate interest in promoting heterosexuality or traditional gender norms. (negative) • such promotion should fail even rational basis. • the promotion of either also violates the constitutional rights of the child (Rosky makes three separate arguments) and thus heightened review is called for.

The Backlash of the "Anti-Feminists."

• Frontiero and Craig sparked an anti-feminist backlash in the late 70s and early 80s • Many were essentially normative arguments draped in the language of constitutionalism. 1. Ran at odds with the values of localism, where the family and the state are the primary situs for rules relating to gender-normative roles in bearing and raising children, without interference from the national government; 2. Under a proper separation of powers, the popularly elected legislature is both the most legitimate and the most institutionally competent state entity to handle complex, delicate moral and family issues - calls for judicial restraint. 3. The rights articulated on behalf of fetuses and parents should be considered as fundamental liberties. • The Equal Rights Amendment was proposed during this time. Prominent anti-feminist Phyllis Schlafly argued against the amendment. Her most popular arguments: o The E.R.A. would result in women joining the draft. o The E.R.A. would invalidate gender specific statutory rape statutes o The E.R.A. would force the legal recognition of same-sex marriage and other "homosexual rights." • These positions were concerns were shared by many at the time.

The "per se" rule

• Governed the evaluation of gay male and lesbian parental fitness until about the late 1970s, though some states (like Missouri) arguably used in until the 2000s. • not an "official rule," a summary of how the Courts treated homosexual orientation in custody matters. • created a "rebuttable presumption" that a gay parent was less parentally fit than a heterosexual parent, ceteris paribus. meant that courts could consider a parent's homosexual orientation to be a detriment to their parental fitness without any evidence to support the assertion. also meant that, usually, the parent was allowed to present evidence to the contrary as well, but there did NOT need to be a finding of fact or evidence considered on that point.

In what ways did the scientific community participate in the effort the establish a "straight state."

• Homosexual orientation was deemed a mental illness until the early 1970s by the APA • Belief that sex and gender minorities were "evolutionary inversions." • Belief that those with same sex attraction were "psychopaths" who were predatory. • Participation of the medical community in developing, and administering shock therapy, chemical castration, and lobotomies.

The development of sex discrimination

• In 1920 the 19th Amendment was ratified granting women the right to vote. The question of women's equality under the law, however, remained largely dormant until the 1960s. • Courts largely ignored the notion of sex discrimination through the early 1960s: • Goessart v. Cleary and Hoyt v. Florida, both dismissing the notion of women's equality under the law. • President Kennedy established the Commission for the Status of Women in 1961, and this acted as a forum to analyze the issue. • Murray Memorandum • 1964: The civil Rights Act of 1964 (a Congressional Statute) • prohibits discrimination based on race, religion, color, or national origin in public places, schools, and employment. • Establishes a statutory cause of action (you can sue pursuant to the 1964 Civil Rights Act) What has yet to happen? • Heightened scrutiny for gender or sex discrimination (recognizing gender / sex as a suspect class) • You could sue under the Equal Protection Clause but the discrimination would only have to pass rational basis.

Why was the right to marry so important

• Inheritance issues. • Custody issues • Insurance issues (many health insurance programs allow the spouse to be covered as well). • Access to hospitals and the ability to consent to medical procedures. • Citizenship. • Life Insurance. • And, of course, the dignity afforded through the state's recognition of a relationship.

What is the status of sexual orientation?

• It's still unclear. • The 9th Circuit, in SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014) held that sexual orientation IS a suspect class. • They reasoned that Windsor used heightened scrutiny even though they never clearly stated that they were doing so. • But other circuits have so far avoided the issue. • So sexual orientation IS a suspect class in the 9th Circuit but nowhere else (yet).

Frontiero v. Richardson

• Male members of the armed forces were able to claim their spouses as "dependents" even if they weren't actually financially dependent on them. • But female members of the armed forces had to establish that their spouses were actually dependent on them to claim them as dependents. • Nature of claim: alleged violation of equal protection clause Lower courts: • Assumed that the difference was based on the idea of the male as the "breadwinner" - less need for the female service members to claim "dependents." • Would probably pass rational basis • The government's stated rationale: reduced administrative costs. Court held: • Sex deserves heightened scrutiny as a suspect class. • Long history of discrimination and oppression: • "Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women, not on a pedestal, but in a cage" • Sex, similar to race, is a mere accident of birth - an immutable characteristic. Logic stems from Murray and others with similar arguments. • Ambiguity as to whether strict scrutiny is applied - isn't done literally.

Fricke v. Lynch (Rhode Island District Court)

• Male student prohibited from bringing another male student to prom as his date • Court held that the act of taking someone to prom can be expression worthy of first amendment protection. • agreed with the plaintiff's assertion that "his attendance would have a certain political element and would be a statement for equal rights and human rights." • school argued that they were concerned for the student's safety. - Court was not convinced by this - the school could have taken "appropriate security measures to control the risk of harm"

What other constitutional rationales could be used to establish a right to same-sex marriage?

• Marriage is a fundamental right, thus the denial of marriage demands strict scrutiny. • The denial of same sex marriage violates equal protection on gender grounds (and thus heightened scrutiny). o A man can marry a woman, but is prohibited from marrying man. Thus the prohibition discriminates on the basis of gender. o This argument was tried in numerous cases, state and federal, but no appellate courts has accepted it. It was mentioned in some concurrences. • The prohibition of same-sex marriage fails rational basis. o There are very few (if any) logical reasons to deny same-sex couples the right to marry. Many thought the denials should fail even on rational basis grounds. o By this logic, equal protection arguments against the prohibition should succeed even without heightened scrutiny. • Sexual orientation should be a suspect class pursuant to footnote four. • The prohibition of same-sex marriage was enacted due to animus against orientation minorities (this might require a state that passed legislation to specifically bar same-sex marriage). • The choice of one's life partner is covered by the right to privacy. o Much like the choice to have a child, or to manage the education of one's child - the choice of a life mate is a private choice that is central to one's identity, life plan etc.

Why did some have reservations to the nationwide push for marriage equality?

• Marriage, to many, was a heteronormative institution. They saw a push for marriage as a push to assimilate. • Andrew Sullivan, a self-described "conservative gay man" (and a columnist for the Atlantic) caused an uproar within the LGBT community in the late 80s by arguing for legal, same-sex marriage. • But, when the Federal Government took a stand denying the right to same-sex marriage, same-sex marriage became a rallying point for most of the LGBT rights movement.

Mississippi University for Women v Hogan

• Mississippi created "the Mississippi Industrial Institute and College for the Education of White Girls of the State of Mississippi" in 1884 • A male applicant applied and was denied due to his gender. He sues on equal protection grounds. Held: • The equal protection clause applies intermediate scrutiny to discrimination against men as well as women. • If an objective is to exclude or protect members of one gender .... • "if the statutory objective is to exclude or "protect" members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate." • The exclusion of men in this case violated the equal protection clause. • Surprised?Men have not been historically oppressed (though one could argue that they have been historically pushed away from nursing). So how are they a "discrete and insular minority." • But their gender is likewise an "immutable characteristic."

Difference vs. No Difference Feminists

• No difference feminists largely accept that differences between men and women exist but argue that they should be ignored. Both sexes should be governed by the same rules in each and every instance. If men are drafted women should be too. • Differences between the sexes exist but they should be irrelevant for employment, education, etc. etc. • The difference feminists also accept that differences between the sexes exist but they argue that they should be taken into account when women need protection, or special consideration. Policies granting only women maternity leave, for example, make sense to these feminists. Policies limiting the amount of hours a woman can work a physically demanding job might also make sense, or criminal laws treating sexual assault by males against women more seriously than they converse.

Craig v. Boren

• Oklahoma law allowed women to buy low alcohol beer at 18 but not men (they had to be 21). • According to Oklahoma young men were "reckless" while young women were "responsible." • This reasoning is, of course, gender essentialist. • Many argued that young women date older men and that it should therefore be allowed for them to drink alcohol. It was thought to better their marriage prospects. - OK did not officially make this argument in court. Held: • Unconstitutional via the Equal Protection Clause • They announce the "intermediate scrutiny" test: • "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." • This is a level of review that is "in between" rational basis and strict scrutiny. • Couldn't just use strict scrutiny as there are actual, physical differences, between men & women - slightly less suspicious of legislation that treats them differently (than for race, for example)

Specific Political arguments in the "No Difference Debate"

• Paul Cameron argued that "Homosexuals make poor parents" in part because they (allegedly) are more likely to physically abuse their partners. • has likewise argued that the children of these parents are more likely to engage in such habits as habitual urine consumption (for erotic purposes). • Peter Sprigg and Tony Perkins regularly referred to homosexuality as "the greatest public health hazard in America." • Bryan Fischer extrapolates from mental health data that homosexuality is the root cause of a recent increase in student suicide ("if we want to see fewer students commit suicide, we want to see fewer homosexual students") . • Paul Cameron claims: "It is well-documented that those who engage in homosexuality are — as a group — much more likely to molest children"

The Political/Cultural "No Difference Debate."

• Political speech is often imprecise (& often coarser w more slurs), often blurs with objections to homosexuality in general or, in more recent times, objections to same-sex marriage. • four main arguments emerge. Same as academia: o do the children suffer comparatively worse life outcomes than the children of heterosexual parents o are the children more likely to express non-traditional gender norms and/or non-traditional sexual orientations? (political activists tend to charge gay male and lesbian parents with actively "recruiting" children on both fronts eg. Anita Bryant) Adds: o gay parents are more likely to sexually abuse their children and o gay parents are more likely to expose their children to disease (typically, H.I.V.). - avoided by courts (eskridge's sedimentation?)

Franke's main claim

• She does NOT make the extreme claim that there are NO biological differences between men and women. .. though she comes close. • accepts that women have children and men do not. • denies differences in strength and athleticism, and most other differences. • argues that women racing times are progressing at a faster rate than men, and thus they will equalize in a few decades. • she says that difference between men is more than the difference between the sexes in some cases. • But in non-extreme cases (most occupations etc.), this argument seems to make a lot of sense. Ginsburg appears to disagree with Franke's more radical take, that sex is mostly metaphor. Ginsburg recognizes and "celebrates" the differences

Illegality Argument

• Some courts have compared allowing a gay male or lesbian parent to obtain custody is little different from allowing an arsonist or thief to obtain custody.

Employment Discrimination in the "Straight State"

• Starting with the military. If one was dishonourably discharged then it was very, very hard to find employment afterwards. • Persons suspected of homosexuality were frequently barred from teaching and other professions. • Frank Kameny, one of the first fired federal employees to challenge his firing legally. Worked as an Astronomer for the defense department. • Today it is still legal in many states to fire someone for their sexual orientation - in most cases no reason was necessary. • ENDA still has not passed and the courts have yet to, clearly, make sexual orientation a protected class (more on this later)

The Comstock Laws

• States broadened "sodomy" to include oral sex. • Local police stepped up enforcement. o Same-sex dancing. o Cross dressing. (people who "outrage public decency by personifying someone other than themselves." o Same-sex hugging, kissing. o Same sex propositions (flirting, directly asking someone out etc.) • "sexual psychopath laws." Mid 1930s. Often those convicted could be held for an indeterminate time in mental hospitals. • Alcohol licenses could be removed for hosting a "disorderly house." Up through the 1970s establishments that allowed "same-sex dancing, hugging and kissing" were closed for this reason. • On the state level (including California), "inverts and homosexuals" were sentenced to forced medical interventions including lobotomies, shock therapy, chemical castration, and sterilisation.

Henkle v. Gregory (Nevada District Court)

• Student complained of being harassed at school after announcing his sexuality on a television show. • School did not take measures to protect him and also told him "to keep his sexuality to himself." • School later approved a transfer but made the approval contingent upon Hinkle agreeing to "keep his sexuality to himself." • Court held that the school violated his first amendment rights. Henkle had a right to "express his sexuality" • Henkle is part of a long line of cases establishing "the right to be out."

KF argument re. Lawrence and the 13th amendment

• The 13th ended slavery, thus making former slaves "freed people," but not "free people." • They were not recognized as fully fledged political subjects until the 14th amendment and the 1865 Civil Rights Act (one could well argue that this actually did not occur until much later - the 1964 Civil Rights Act - or that is still yet to occur). • Lawrence is similar in that it merely prohibits criminalization. It does not legitimize the LGBT community or grant them equal status. • It merely signaled a tolerance of same-sex sexual behavior - if it occurred in private. • put LGBTQ+ people in a liminal state.

Women's rights and the Civil Rights Act of 1964. National Archives

• The 1964 Civil Rights Act prohibited discrimination based on race, religion, colour, or national origin in public places, schools, and employment. • Howard Smith, a congressman from West Virginia, successfully added "sex" to the categories of impermissible discrimination as a poison pill.

Franke, K. (1995). Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender

• The Courts error when they separate biological sex from socially constructed sex (gender norms, gender expression) in sex discrimination cases. • Because sex itself is largely socially created. The alleged differences do not exist in reality, they exist by virtue of social construction. • Note the inherent logic of the intermediate scrutiny standard: it is needed (instead of strict scrutiny BECAUSE there are real, physical differences between men and women that justify some discrimination. • The distinction between real and assumed is key to sex discrimination jurisprudence as announced in VMI, Boren and Fronteiero. If discrimination is based on a real physical difference then it has a chance of being upheld. If it is based on a stereotype or imagined difference, then it will not. our sex discrimination jurisprudence anticipates and allows society to see men and women differently. It acknowledges those differences as real and important. she believes that courts should be far more hesitant to accept any sexual difference as reality.

The term "floaters"

• The criticism referred to the perception that they were unattached. Unmarried, not a member of a normal family unit. This was seen as a failure to contribute to society, to "chip in." • This is similar to the criticism discussed above. Society was perceived as heteronormative. Men married, settled down and worked. That's what made a strong state.

Lisa Duggan, Beyond Marriage: Democracy, Equality and Kinship for a New Century

• The marriage model is limited. It fails to address many real needs in society • shocked that the LGBTQ+ rights movement pursued ONLY traditional marriage. • domestic partnerships should still be pursued, rather than viewing them as "second tier" • the LGBTQ+ community should realize the need for a variety or models. criticises traditional marriage: • It's been used to "promote" morality. Put forward as the only "acceptable" option while denigrating those who live in other models. • Particularly pointed criticism at single mothers, communities of colour (the Moynihan Report). • used to privatise the cost of societal ills.

Nancy Polikoff and the nuclear family

• The notion of the nuclear family stresses form over function, when in reality it should be the reverse. • NP argues the LGBT community used to stand firm behind this argument (that function of the family is more important than the form) but in recent court cases they appear to be adopting the very mindset that critiques of LGBT families used to wield.

The state's interest in children

• The state has more leeway when it comes to children as they don't have the full autonomy of adulthood. • there are instances where the state must govern children (in loco parentis). • School is the best example. The state controls students as if they were their parents when at school (in loco parentis). • The state also must choose some curriculum. • In a custody contest, the state must choose between parents, so in a very real sense they are acting as the governing parent during that process. • An adult, on the other hand, would simply choose where to live (on their own, with a parent etc.). Or whether to go to school. children's rights are always limited because they are not adults. They are not, in a sense, "fully vested" with constitutional rights. The line between abuse and the fair use of parental authority is often hard to draw. the state has an interest in protecting the child's welfare, even against the parent.

The "No Difference" Debate Summary

• This debate grew exponentially from the 1980s onward. Are children raised by gay male or lesbian parents meaningfully different to children raised by heterosexual parents? complications: o The impact of divorce o The impact of financial and emotional readiness to raise children o The impact of a biological connection with a child o The impact of societal scorn • difficult question to address empirically Many measurable variables involve subjective assessments of what is good/bad behaviour Two camps: • 1: questioned whether the children of gay parents are more likely to fare worse on a variety of health and welfare metrics. • eg. Financial health, mental health, Lifestyle (criminal record etc., physical health, drug use), etc. • 2: questioned whether the children of gay parents are more likely to adopt nontraditional gender norms or nontraditional sexual orientations. • Self-report non-heterosexual orientation, same-sex relationships, childhood play that reflects the "opposite" gender norm, choosing to NOT marry, etc. (a hard thing to measure)

Disease concerns

• This fear was especially pronounced during the AIDS epidemic, which was widely perceived as a "gay disease." • other diseases - specifically those that can be spread through promiscuous sex and drug use (based on the stereotype that gay males partake in both frequently). rarely attributed to lesbian women.

Gay Lib v. University of Missouri (1978) (8th Circuit)

• Univ. refused to recognize a gay student group (Gay Lib) whose stated mission was to ""dispel the lack of information and develop an understanding of the homosexual," and "alleviate the unnecessary burden of shame felt by the local homosexual population." • expressly argued that it sought to stymie non-heterosexuality (and thus promote heterosexuality). • reasoned that "[w]hat happens to a latent or potential homosexual from the standpoint of his environment can cause him to become or not to become a homosexual." • argued that recognition would: o "(1) reinforce the personal identities of the homosexual members of those organizations .. .; o (2) cause latent or potential homosexuals who become members to become overt homosexuals; [and] o (3) expand homosexual behavior which will cause increased violations" of Missouri's sodomy law. • 8th Circuit ruled that the refusal violated the organization's first amendment rights. • reasoned that there was insufficient evidence to conclude that the group's advocacy would either encourage homosexuality or lead to the violation of the state's sodomy laws. • held that even if there was such evidence, barring the group would still be unconstitutional. would not be sufficient to justify "prior restraint." SC denied review of the case, but Justice Rehnquist dissented. equated homosexuality to a contagious disease such as measles. making an argument that the state DOES have an interest in the prevention of LGBT related outreach/advocacy.

Gay Students Organization of the University of New Hampshire v. Bonner

• University denied the Gay Student Organization from holding social functions on campus • argued that it had an "obligation and right to prevent activities which the people of New Hampshire find shocking and offensive." • and an interest "in preventing illegal activity, which may include 'deviate' sex acts, 'lascivious carriage,' and breach of the peace." • First circuit held that the school could not curtail the GSO's speech simply because it considered the group's message to be "abhorrent." • added that "there ha[d] been no allegation that any... illegal acts took place at the GSO social events," and the school's policy could not be justified by "[m]ere 'undifferentiated fear or apprehension' of illegal conduct."

United States v. Virginia

• VMI, a military school, admits only men. • It has an "adversative" method of training • Challenged under the EP clause • They lose at the appellate level. Offer a separate school for women with a different training method: training that focuses on: "a cooperative method that focuses on self-esteem." VMI argued: • Single sex education provided unique educational advantages. • their method of training would not be compatible with a co-ed student body - men thrive in adversative (competitive) environments / women in cooperative environments. Held: • VMI did not provide an exceedingly persuasive justification. • no proof that the presence of women would tarnish or diminish their educational method. • It is a "self-fulfilling prophecy." • cannot take generalized assumptions about all women or men (essentialist assumptions) and then use them to justify discrimination.

Military's role in the "Straight State"

• WWI large draft- the military decided that "sex and gender" minorities were bad for unit cohesion, forming an effective fighting force etc. • developed screening programs to root out "inverts and degenerates" during the draft process. o They assumed they would be weaker, sickly, and "effeminate." Men with small or deformed genitals were assumed to be likely inverts. o prosecuted instances of same-sex sex and cross dressing. • the soldiers they caught committing "degenerate acts" were NOT weak, sickly and "effeminate." Though this did not much change their screening procedures. • not seen by some as "inverted" if they were the "dominate (penetrating)" participant. • the "dominant" participants were often shocked when they were charged for degeneracy. frequently claimed that their sexual act was rather one of aggression/ hazing. • Chauncy argues that many working class communities at the time defined masculinity not in terms of sexuality but in terms gender (the Roman understanding). • The military helped to define what we now consider a "homosexual." Ironically introducing it to many in the country for the first time. • The concept of lesbianism confused the early military - unsure how to screen for it. • belief that women were susceptible to "confusion"- military reluctant to prosecute for simple acts of sex. Often focused on emotional attachment. Presenting testimony that that a couple was often seen holding hands, talking late at night etc. • far less punitive when women were at issue. • This echoes the "weaker vessel" stereotype: the notion that women were easily led by their emotions and unable to resist evil on their own. • Also might evince a simply lower level of concern when it came to female service members.

Hoyt v. State of Florida

• Women are not called for jury duty unless they sign up to be called. • All men are called regardless of if they signed up. • Plaintiff was charged with murdering her husband after a dispute over an infidelity • She argues that women on the jury would have been more sympathetic to her. • Court ruled it was not error to effectively keep women off the jury because Plaintiff is not entitled to a jury tailored to her specific case. • HOWEVER- it has been held to be reversible error to bar certain races from the jury, especially if the defendant is of that race. • The Court simply states that confining juries to men has a long history behind it. • "A woman is still regarded as the center of home and family life." - sufficient rationale. Gender essentialism. • More objectionable reasons? Protecting 'delicate' women from the brutality and immorality of trials? Less rational? • No dissent • Discussion of Strauder v. West Virginia • Court argues that the statute "does not purport to exclude women from state jury service. Rather, the statute 'gives to women the privilege to serve but does not impose service as a duty.'" • Rational basis - gender not yet a suspect class

The Regnerus Study (2012).

• could be seen as an attempt to answer the criticisms of Wardle's article. designed to answer: do the children of non-heterosexual parents really experience negative life outcomes compared to the children of heterosexual parents? • Follows a relatively large cohort of children to measure differences in welfare outcomes • compares children raised by heterosexual parents in intact, opposite-gendered marital relationships to children raised by any parent who has at one point participated in a same-sex relationship. • Regnerus claimed to find evidence that the children of the latter cohort experienced comparably negative life outcomes (addressing the "welfare" prong of the debate). • Specifically: o more likely to rely on welfare assistance; o lower educational attainment; o more likely to suffer from depression; o arrested more often; o more likely to smoke; o less likely to be employed full time; o more likely to be unemployed; o more likely to use marijuana more frequently; o Have a lower household income; o more likely to watch TV for long periods; and o less likely to vote in presidential elections. o more sexual partners than average o more likely to cohabitate prior to marriage

Chicoine v. Chicoine Facts & Main Finding

• couple married and had two children. wife later "came out" and started a series of same-sex affairs. • couple divorces. • Husband awarded custody • wife was only awarded restricted visitation - every other weekend. • not allowed to have any unrelated females or homosexual males present in the house during visitation -forces Lisa to determine the sexual orientation of every male that comes into her house • The court's sole concern was Lisa's sexual orientation. • The Court found that Lisa behaved improperly and harmed her children in part because she caressed, kissed and said I love you to her female lover in front of the children. • These are ordinary displays of physical affection that barely raised an eyebrow in the heterosexual context. The mere fact of the affection is homosexual in nature is what renders it harmful in the eyes of the court

Gender Modeling

• fear that gay male and lesbian parents will fail to impart traditional gender norms to their children • concern that the children will not learn to act like traditional boys and girls. Lundin Case raises the same legal concerns as orientation modeling argument.

Chicoine v. Chicoine Dissent

• finds the award of visitation to be too liberal. • seems to believe that Lisa should not have any contact with their children, though the dissent does allow that she could have contact if she were to "overcome" her homosexual orientation through years of therapy and choose to no longer live "a life of abomination" as a lesbian. "For years, she has followed a life of perversion and openly flaunted it before these children" • She appears to be flaunting her sexuality merely because she is engaged in rather ordinary displays of affection. • Homosexual sexuality is deemed judicially salient while heterosexual sexuality is not. • refers to the mother as "lesbian mother." • This appears derogatory. It is also unusual. No court would refer to a heterosexual mother as "heterosexual mother." • allowing sexual orientation to define this person. • looks to scripture, specifically Christian scripture, to justify its rational. • discusses same-sex sexuality as something that "contaminates" children • treats same sex orientation as something that needs to be addressed, and overcome, through therapy • describes homosexual orientation as a "dementia." • dehumanizing use of quotation marks. makes clear that it does not consider Lisa's partners to be real "lovers" • dehumanization of the wife's intimate relationships • Lisa's sexuality, and her subsequent decision to divorce Is cast as a threat to the institution of marriage itself. Which the Court here describes as the sacrament of marriage (again mixing biblical authority with legal reasoning). • Lisa's sexuality is cast as a threat to hard-working honest men. Dissent concludes with a "caveat" of pure political hopes, stating religious beliefs. Not appropriate.

Sexual abuse concerns

• once a common argument against gay parenting, specifically gay males. Gay males have historically been portrayed as potential child molesters (remember the Boy's Beware" movie). far less common to see the stereotype applied to lesbian women. • empirically false; straight males are statistically more likely to sexually abuse minors than any other demographic, lesbians and straight women are the least likely. Gay males fall somewhere in between.

define intersectionality

• persons who possess multiple identities tend to face stereotypes and biases that are unique to that intersection. biases can be unique to the biases of the cardinal groups at issue.

Wardle's first prong

• points to a variety of studies to support this claim. Javaid 1983, for example, suggests a link between a daughter's homosexual fantasy and her mother's homosexual orientation. • Belcastro 1994 noted that the children of gay parents exhibited "significant differences" in their gender identity and gender behavior. • points to evidence gathered in early studies and claims that "homosexual parents appear to produce a disproportionate percentage of bisexual and homosexual children." • further claims that these children tend to express gender in non-traditional ways, citing o evidence of increased "cross-dressing" o a (disproportionately high) stated preference to remain childless when older and o less masculine expression from the boys

What common stereotypes were expressed in the "Boys Beware" film?

• predatory. pray on young, unsuspecting boys. • In the WWI era gay men, gay men were portrayed as "wolves" who pursued "chickens" young men. • also described as mentally ill. • compelled to pursue young men. It's out of their control. • They blend in, and thus are more dangerous (Jimmy thinks he looks like a "swell guy"). • This is, in effect, using the closeting of gay men (and to a lesser extent women) against them. • It is a double edged sword. On the one hand, gay men are prosecuted for being open, but the very fact that most of them closeted themselves is used to portray the gay man as even more sinister.

the Nexus Test

• replaced the per se rule in the 1970s, instructing courts to weigh—rather than assume—the impact of all alleged immorality (not just nonheterosexuality) on the evaluation of parental fitness. • afforded gay parents some protection in theory - required a demonstrated connection between a parent's sexuality and harm to the child before their sexuality could be deemed relevant to the evaluation of their parental fitness. • While this appeared to be progress, in practice, courts were still free to find that sexual orientation rendered gay parents less fit than their heterosexual counterparts. They now simply had to justify their conclusions rather than assert them. courts developed a host of suspect arguments in order to justify a "nexus."

Wardle's second prong

• somewhat muddled because many of the "negative life outcomes" he cites are what he believes to be the negative results of living with a homosexual orientation. • So this claim largely blends into the first (that these children may be more likely to "adopt" a homosexual orientation). • That said, he lists the following as negative life outcomes that deserve more academic attention: o suicidal behavior, o prostitution, o running away from home, o substance abuse, o HIV infection, o highly promiscuous behavior with multiple sex partners, and o "premature sexual activity"

Rosky: The State promotion of heterosexuality and traditional gender roles is barred the constitutional guarantee of due process.

• substantive due process not procedural due process • SDP concerns certain "liberties" that have traditionally been free from government intrusion (choosing an educational path for one's child, whether or not to have children, whether to marry...). The court declares these liberties immune from governmental intrusion that cannot overcome strict scrutiny. • Lawrence established the "the liberty of persons to choose" homosexual relations and relationships. • argue that children have this right as well. • Though there are some situations where the state is allowed more control over children. • Parents could forbid sex in the house, or punish sex outside the house. • Schools could certainly bar certain sexual activities from campus as well.

Immoral Exposure Argument

• their presence or behavior will endanger the moral development of their children • This argument can be maddingly vague • What is moral? What evidence is there that the children will become "immoral."

How were Sex and Gender Minorities seen as threats to the state?

• weakened the culture, made us vulnerable • During the cold war this fear was especially pronounced. There was a concern of communist infiltration • Wide spread belief that there was a need to straighten the traditional family, in the face of the communist threat (even today you will hear people state that "Marxist" and "Communists" aim to erase the traditional family, or traditional gender roles. ...)