American Constitutionalism in Historical Perspective (packet)

Immutable: controversial, have an orientation, what you choose to do about it is your choice.

Salient: not necessarily. Able to modulate the impact of the stigma. Similar to religion, can choose to be public or private.

History of prejudice: sex acts were criminalized in Bowers, this case d/n overrule it. Character of history is that homosexual acts are unspeakable. This movement is challenging that assumption by questioning dominant beliefs. Bowers continues to stand based on:

1. 
   Character of fundamental right: have a fund rt to intimate life but is distinguished by sexual nature in Bowers.
   
2. 
   Justify state intrusion: non-procreational sex is always wrong, degrades gender roles.
   

Irrelevant to legitimate state purpose: Bowers can be good law w/out criminalizing public identity of being a homosexual just like state c/n deprive people of rts b/c of their religious convictions in Mormon cases (if publicly identify self as Mormon, not subject to criminal sanctions, only if engage in polygamy). The state is violating central American principles of :

1. 
   Conscience: legislation directed against public identity which is very close to the religion clauses. D/n focus on immutabilty and salience, want to link directly to the religion clauses and their suspectness analysis, may have more force than race arguments.
   
2. 
   Speech: by removing protections for this group, hindering their rt to free expression.
   
3. 
   Gender degradation: strong element of sexism in these laws, rooted in issues of gender identity, need respect for autonomy.
   

Powerless minority: able to organize here but d/n have support of the majority and fear of stigma hinders efforts to increase representation.

Dissent: gays have political power far beyond their numbers. As get more power, less worthy of protection. (But d/n need to rely on this factor if look at issue as similar to religion)