American Constitutionalism in Historical Perspective (packet)

Gays in the Military: “Don’t Ask Don’t Tell” Policy, compromise with Congress to desegregate the military sexually but quietly. Implicates free speech issues, targeting a public identity claim. Cts defer to the military, must be free to det policy thru Congress/democratic process. Ppl waive rights when they join the military. Like gender b/c put on pedestal and judged according to sexual activity.

1. 
   Pregnancy and physical diffs may be relevant for gender but arguments d/n apply to gays. Britain, Germany, etc have integrated gays.
   
2. 
   Remaining issue is morale/group cohesion but can have same reqs for monitoring misbehavior w/ gays as w/ other groups. Proxy for bigoted opinions/discriminates vs. gay rts supporters. Still may think someone is gay and act differently w/ this policy—witchhunt mentality.
   

Gay Marriage: difficult to recog as fund rt when Bowers is still on bks. Should be allowed b/c of anti-miscegenation implications, sex discrim to forbid marriage b/w parties of the same gender.

6) The Strict Test: Fundamental Rights and Beyond (Minimal Welfare Rights)(pp. 840-916)

1. 
   Analysis:
   
   1. 
      Identify the right: rooted in universal human rts (dignity value). Has an egalitarian component, if the rt is given to one person, must be given to all people. Fund rts analysis has been expanded to equal protection, on the basis that these rts are needed to protect the enumerated rights (instrumental rights).
      
      1. 
         Voting Rights
         
      2. 
         Access to the criminal and civil legal process
         
      3. 
         The right of movement
         
   2. 
      Justification for state abridgement:
      
      1. 
         Clear and present danger (free speech)
         
      2. 
         Compelling state purpose (religion, constitutional privacy)
         
2.