OTHER FORMS OF DISCRIMINATION

1. OTHER FORMS OF DISCRIMINATION POS 327

2. DISCRIMINATION BASED ON SEXUAL ORIENTATION U.S. Supreme Court has only rendered three significant decisions on this topic. First case didn’t occur until 1986 Bowers v. Hardwick (1986) Romer v. Evans (1996) Lawrence v. Texas (2003)

3. Lawrence v. Texas (2003) OPINION OF THE CT: • Legal trends in different states and in Europe show recognition of importance of personal liberty regarding sexual relationships. • Sodomy laws of this type cannot be justified by claim that a majority of their citizens think that homosexuality is immoral.

4. Romer v. Evans (1996) FACTS: • Amendment 2 prohibited the enactment of any state or local laws prohibiting discrimination on the basis of basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships.“ ISSUE: • Does Colorado's Amendment 2 violate the equal protection clause of the 14th amendment? • YES (6-3)

5. Romer v. Evans (1996) PRECEDENT: It is a violation of the equal protection clause of the 14th amendment for a state constitution to prohibit the enactment of any state or local laws prohibiting discrimination on the basis of basis of homosexual, lesbian or bisexual orientation, conduct, practices or relationships. REASONING: It is unreasonable to deny someone equal rights of political access based on their sexual orientation.

6. Romer v. Evans (1996) NON-DISCRIMINATION v. SPECIAL TREATMENT: One of the arguments raised by the state was that rather than discriminating against homosexuals, Amendment 2 did no more than deny homosexuals special treatment.

7. Romer v. Evans (1996) NON-DISCRIMINATION v. SPECIAL TREATMENT: The court rejects the “special rights argument” • While it singles out homosexuals for special treatment, the amendment imposes a disability rather than a special right. • Other groups can get legislative bodies to pass laws that provided them with protection from the injuries caused by discrimination. • Only homosexuals have to get a state constitutional amendment before they can receive similar statutory protections.

8. Romer v. Evans (1996) FREEDOM OF ASSOCIATION ARGUMENT: State also argued that the amendment would protect other citizens' freedom of association (e.g. the liberties of landlords or employers who have personal or religious objections to homosexuality).

9. Romer v. Evans (1996) PRESERVING TRADITIONAL MORAL VALUES: Dissenting Opinion: Justices Scalia, Rehnquist, and Thomas argued that: • The limited denial of rights is justified under the rational basis test as meeting the legitimate government purpose of preserving traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.

10. Same-Sex Marriages • Several significant cases involving the legality of same-sex marriages have been decided by state courts. These decisions include: • Baeher v. Lewin (Hawaii) • Baker v. Vermont (Vermont) • Goodridge v. Dept. of Public Health and Opinion of the Justices to the Senate (Mass.) • All ruled against the then existing or proposed state laws that prohibited same-sex marriages. • All were based on state constitutions rather than on 14th amendment of US Constitution.

11. Arguments for Same-Sex Marriages SYMBOLIC: • Homosexuals don’t want to live as “second class citizens.” They want to have same rights and recognition as heterosexuals PRACTICAL • Inheritance rights and child custody situations. • Employee benefits and government benefits for spouses.

12. Arguments against Same-Sex Marriages SYMBOLIC: • They have religious/moral objections and don’t want the state to give its “stamp of approval” to such behavior. PRACTICAL • They argue that homosexual couples can use contractual law to get visitation rights, child custody, inheritances, etc.

13. Goodridge v. Dept. of Public Health (Mass. 2003) ISSUES: • Should the Mass. marriage statute be interpreted as prohibiting same-sex marriages? YES (7-0) • Is it a violation of the individual liberty and equality provisions of the Massachusetts constitution for the state to prohibit same-sex marriages? YES (4-3)

14. Goodridge v. Dept. of Public Health OPINION OF THE CT Using rational basis test Ct. concludes there is no valid justification for depriving same-sex couples from enjoying the “enormous private and social advantages” marriage provides. • States interests in marriage are not limited to begetting children. • Marriage provides more stability for same-sex couples that have adopted or are caring for children. • Allowing same-sex marriages does not reduce the value of traditional marriages.

15. Goodridge v. Dept. of Public Health DISSENTS: • Majority bases decision of a “right to marry,” but such a right is created by the state and is not a fundamental right. • State’s decision to prefer traditional, long established family structure over more recent “untested” same-sex family structures meets rational basis test. • Decision to extend benefits and burdens of civil marriage to same-sex couples should be left to the legislature.

16. Massachusetts Responses to Same-Sex Marriage Court Decisions • On 2/3/04 the Mass. S. Ct. issued an opinion Opinions of the Justices to the Senatethat rejected the proposed Civil Union statute. • PRECEDENT: It would still be a violation of the Mass. constitution's due process, equal protection and Declaration of Rights clauses for the Mass. legislature to prohibit same-sex marriages even if they allowed them to form civil unions with all "benefits, protections, rights and responsibilities" of marriage.

17. Opinions of the Justices to the Senate (Mass. S.Ct., 2004) • The four majority justices wrote: “The history of our nation has demonstrated that separate is seldom, if ever, equal.” • They concluded the creation of the two-tiered system would have the effect of “maintaining and fostering a stigma of exclusion that the Constitution prohibits.”

18. Federal Issues involving Same-Sex Marriages • As pointed out earlier, these cases have all been based on state constitutions. There have not yet been any decisions based on 14th amendment equal protection clause. • In response to the decision in Hawaii, Congress passed the Defense of Marriage Act in 1996. Although authority over marriage is delegated to the states, this federal act was passed to prevent states that opposed same-sex marriages from having to legally recognize such marriages when they were performed in another state.

19. The Defense of Marriage Act DEFINITION OF MARRIAGE • "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

20. The Defense of Marriage Act PROTECTION OF MARRIAGE "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.“

21. Problems with the Defense of Marriage Act • One of the problems with this legislation is that it appears to conflict with the “Full Faith and Credit Clause” of the US Constitution. • Art. IV, Sec. 1 of the US Constitution states: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” • In Dred Scott v. Sandford the court ruled that one state did not have to accept another state’s determination of slave status, but there haven’t been any related cases since 1857.

22. Able v. United States (2nd Cir 1998) PRECEDENT: • It is not a violation of the equal protection component of the 5th amendment due process clause for the US military to enforce its “don’t ask, don’t tell” policy toward homosexuals. REASONING: • The Supreme Court has ruled that courts must give great deference to Congressional judgments in matters affecting the military. In these circumstances, judges must be particularly careful not to substitute their judgment of what is desirable for that of Congress.

23. Discrimination Against Aliens

24. Discrimination Against Aliens • While aliens don't have the right to vote, and certain other legal rights, they are covered by the provisions of the due process and equal protection clauses. • "nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.“ • First case to make it to the Supreme Court regarding discrimination against aliens was Yick Wo v. Hopkins in 1886 where the court ruled that a state couldn't prohibit an alien from China from starting their own laundry business.

25. Cases Protecting Aliens • Graham v. Richardson (1971) struck down laws denying welfare benefits to legal aliens • In re Griffiths (1973) invalidated Connecticut law prohibiting aliens from practicing law • Bernal v. Fainter (1984) invalidated Texas law requiring public notaries to be citizens

26. Cases Allowing Discrimination Against Aliens • Mathews v. Diaz (1976) upheld federal law that imposed five year residence req. to qualify for medicare benefits • Nyquist v. Mauclet (1977) upheld NY policy prohibiting aliens from receiving certain types of financial aid for college. • Foley v. Connelie (1978) upheld NY law prohibiting aliens from working as police • Ambach v. Norwick (1979) upheld NY law prohibiting aliens from becoming public school teachers

27. Tests Used in Alien Cases NOTE also that the Supreme Court has been inconsistent regarding which test to apply in these types of cases. • In Graham v. Richardson (1971) they ruled that aliens were a suspect class and therefore applied the strict scrutiny test. • However, in Foley v. Connelie (1978) they held that it wasn't necessary to apply strict scrutiny in situations where it is related to some important government function.

28. Plyler v. Doe (1982) ISSUES: • Is the Texas law denying a free public education to undocumented school age children constitutional? • NO (6-3) TEST USED: • Heightened Scrutiny

29. Plyler v. Doe (1982) REASONING: Justice Brennan (joined by Stewart and Stevens) • There is no rational justification for penalizing the children of illegal aliens for their presence within the United States. The children affected by this law can affect neither their parent's conduct nor their own status.

30. Plyler v. Doe (1982) REASONING: (continued) • There is no evidence in the record suggesting that illegal entrants impose any significant burden on the state's economy. On the contrary evidence suggests illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state. • Whatever savings might be achieved by denying these children education are wholly insubstantial in light of the costs involved to these children, the state, and the nation.

31. Age Discrimination Massachusetts Bd. of Retirement v. Murgia (1976) • FACTS: Challenge to state law mandating retirement of uniformed state police officers at age 50. • TEST USED: Rational basis • HOLDING: It is not a violation of the 14th amendment equal protection clause for a state to establish a mandatory retirement age of 50 for uniformed state police officers.

32. Age Discrimination Gregory v. Ashcroft (1991) • FACTS: Challenge to state law mandating retirement of state judges at age 70. • TEST USED: Rational basis • HOLDING: It is not a violation of the Federal Age Discrimination Act for a state to establish a mandatory retirement age for judges.

33. Discrimination Against the Disabled

34. Americans with Disabilities Act (ADA) • As is the case with various other types of discrimination, Congress has passed legislation to protect people with disabilities from being discriminated against in various settings. • Title I prohibits discrimination based on disabilities in employment by private companies. • Title II prohibits discrimination based on disabilities in all activities involving state and local governments. • Title III covers businesses and nonprofit service providers that are public accommodations.

35. Americans with Disabilities Act (ADA) • An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. • The ADA does not specifically name all of the impairments that are covered.

36. PGA v. Martin (2001) ISSUES: • Did Title III of the Americans with Disabilities Act require the PGA to accommodate Martin’s disability by allowing him to use a golf cart rather than having to walk the course? YES (7-2) PRECEDENT: • Title III of the Americans with Disabilities Act applies to disabled people seeking to qualify for or participate in professional sporting events held on golf courses and other locations that are defined in Title III as places of public accommodation. • Title III of the Americans with Disabilities Act requires that sponsors of professional golf tournaments allow contestants to use golf carts when they have medical conditions that make it difficult and very painful to walk the course.

37. PGA v. Martin (2001) REASONING: Opinion of the Court • Title III of the Americans with Disabilities Act applies in this case because • The PGA sponsors golfing try-outs and tournaments on golf courses that are defined in Title III as places of public accommodation. • Casey Martin has a medical condition that is classified as a disability under the terms of Title III of the Americans with Disabilities Act

38. PGA v. Martin (2001) Opinion of the Court (Cont.) • It is a reasonable accommodation to allow disabled contestants to use golf carts when they have medical conditions that make it difficult and very painful to walk the course because: • walking is not a necessary element of the game of golf. • Use of a cart does not give Casey Martin a competitive edge over other golfers.

39. PGA v. Martin (2001) REASONING: Dissenting Opinion: • Written by Justice Scalia and joined by Justice Thomas. • Title III does not protect professional golfers. • this section protects consumers of recreational services rather than employees of the golf course or tournament. • While Casey Martin is an independent contractor rather than an employee, it is still an employment type situation that is covered by Title I rather than Title III. • Q School is like a an employment screening process rather than a recreational event.

40. PGA v. Martin (2001) CLASS DISCUSSION QUESTIONS • What do you think about Justice Scalia’s analogy to allowing disabled child to get four strikes rather than three in little league baseball games? • Who should be decision maker in deciding what are or are not appropriate accommodations?

41. END OF PRESENTATION

42. Able v. United States (2nd Cir 1998) • Although the Supreme Court hasn’t dealt with the issue of homosexuals serving in the military, several District and Courts of Appeals have. • What were the facts in Able v. United States? • What issues were raised?

43. Able v. United States (2nd Cir 1998) FACTS: • Challenge to US military “don’t ask, don’t tell” policy and other policies that provide for a service member's separation from the armed services if he or she has: • (a) "engaged in, attempted to engage in, or solicited another to engage in a homosexual act;" • (b) "stated that he or she is a homosexual or bisexual, ... unless ... the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts;" • (c) or has "married or attempted to marry a person known to be of the same biological sex."

44. Able v. United States (2nd Cir 1998) ISSUES: • Does the US military’s “don’t ask, don’t tell” policy toward homosexuals violate the equal protection component of the 5th amendment due process clause? NO (3-0) • A !st amendment challenge was dispensed with in earlier decision. What test was used? Why was that test used?

45. Able v. United States (2nd Cir 1998) TEST USED: • Rational Basis • Court applies the "rational basis test” because lower court used this test and it is the test which the plaintiffs asked them to apply at the time of oral arguments. • Within the military individual rights must of necessity be curtailed lest the military's mission be impaired, courts have applied less stringent standards to constitutional challenges to military rules, regulations and procedures than they have in the civilian context.

46. Able v. United States (2nd Cir 1998) PRECEDENT: • It is not a violation of the equal protection component of the 5th amendment due process clause for the US military to enforce its “don’t ask, don’t tell” policy toward homosexuals. REASONING: • The Supreme Court has ruled that courts must give great deference to Congressional judgments in matters affecting the military. In these circumstances, judges must be particularly careful not to substitute their judgment of what is desirable for that of Congress.

47. Able v. United States (2nd Cir 1998) REASONING (Cont.): • Richenberg v. Perry (8th cir, 1996) and Thomasson v. Perry (4th Cir. 1996) cited for precedent that rational basis test should be applied to discrimination based on homosexuality. Goldman v. Weinberger (US S.Ct. 1986) and Rostker v. Goldberg (U.S. S. Ct. 1981) support deference to Congress in this area. • Romer v. Evans (S.Ct. 1996), City of Cleburne v. Cleburne Living Ctr. (US S.Ct. 1985) and Palmore v. Sidoti (US S.Ct. 1984) distinguished on the basis that they did not arise in military setting.

48. Baker v.Vermont (Vt. S.Ct. 1999) FACTS: This is a Civil case in which the plaintiffs (Baker, et al) are three same‑sex couples who have lived together in committed relationships for periods ranging from four to twenty‑five years. Defendants are the State of Vermont, the Towns of Milton and Shelburne, and the City of South Burlington. The defendants refused to issue the plaintiffs marriage licenses. Plaintiffs claim this refusal violated the marriage statutes and the Vermont Constitution and seek declaratory judgment to that effect.

49. Baker v.Vermont ISSUES: • Does the Vermont marriage statute prohibit same-sex couples from being married? YES (5-0) • Does the Vermont marriage statute violate the Common Benefits Clause of the Vermont Constitution? YES (4-1)

50. Baker v.Vermont REASONING: Statutory Interpretation Marriage statute doesn’t authorize gay marriages. There is no doubt that the plain and ordinary meaning of "marriage" is the union of one man and one woman as husband and wife. Although the Legislature had undoubtedly not even considered same‑sex unions when the law was enacted in 1945, the interpretation they are using is consistent with the "general intent and spirit" of the original drafters.