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Romer v Evans: The story by the National Legal Foundation

Romer v Evans: The story by the National Legal Foundation. Suzanne Goldberg: Lambda attorney; counsel in Romer. Most Constitutionally Vulnerable?. Exclusion from US Armed Forces 21 Only homo sodomy is criminalized 38 Only homo solicitation is criminalized 33

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Romer v Evans: The story by the National Legal Foundation

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  1. Romer v Evans:The story by the National Legal Foundation

  2. Suzanne Goldberg: Lambda attorney; counsel in Romer

  3. Most Constitutionally Vulnerable? • Exclusion from US Armed Forces 21 • Only homo sodomy is criminalized 38 • Only homo solicitation is criminalized 33 • Exclusion from opp’ty to adopt children 11 • Exclusion from city’s police/firefighters 23 • Exclusion from legal marriage and its consequences 15

  4. Bases for constitutional Claims • Equal Protection • Due Process

  5. Rational Basis • High deference to state re • Interest • “fit” • Economic and social legislation • Physicians v chiropractors • Almost always upheld, but see • Reed • Romer

  6. Strict Scrutiny • Law must be necessary to a compelling state interest • Race

  7. Intermediate Scrutiny • Law must be substantially related to an important government interest • (VMI formulation): justification must be “exceedingly persuasive” • Sex/Gender

  8. Choosing a level of scrutiny • Classification • Treat likes alike • Conduct (modern) not status criteria • Exclude use of prejudice • Class • Exclude use of subordination • Rawls/ “veil of ignorance” • Avoid conflict of organized social groups • Carolene-products • Discrete and insular minorities/ lack of political power • Fundamental Interest??

  9. Due Process: Interest protected by Substantive DP? • Importance to individual? • Part of a “right of privacy”? • Link to specific constitutional rights? • Fourth Amendment • First Amendment • Deeply rooted in history and tradition? • Implicit in the concept of ordered liberty?

  10. Balancing State Interests • Level of scrutiny • What state interests advanced by law? • Legitimate? • How important? • “Fit” between law and interest • Overinclusiveness and underinclusiveness

  11. Key precedents re sexual orientation • Hardwick • Romer

  12. Gender, Sex, Sexual Orientation • What qualities do gays/lesbians have? • Dress • Self-presentation? • Activities • Cultural Interests

  13. Gender, Sex, Sexual Orientation • Gender expectations and children? • Dress • Self-presentation? • Activities • Cultural Interests

  14. Homophobic Language??

  15. Ninia Baehr & Genora Dancel

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