American Constitutionalism in Historical Perspective (packet)

Extended family relationships.

1. 
   Moore v. East Cleveland p. 593 Ct invalidated zoning ordinance which narrowly defimed family as a nuclear family under strict scrutiny. Constitutional rt to live together as family should extend beyond the nuclear family structure. Brennan was worried about the insensitivity of this ordinance toward the economic and emotional needs of black families. White dissented from Powell’s emphasis on history and tradition b/c feared would broaden substantive DP.
   
2. 
   Belle Terre v. Boraas (1974) p. 595: no privacy rts involved in family-oriented zoning restriction excluding most unrelated groups. Deferential standard of review.
   
3. 
   Michael H. v. Gerald D (1989) pp. 597-98: upheld CA law that can presume a child born to the wife is the legitimate child of marriage. Brennan dissent: connotative approach; concept of tradition is malleable and elusive as “liberty” itself. Original reasons for conclusive presumption of paternity are now moot b/c blood tests can prove illegitimacy and no longer same stigma.
   

Bowers v. Hardwick, (1986) p. 600 prior to this case, the court had been willing to extend constitl privacy to every incident of heterosexual life, but worried about extending these rights further. White upholds a GA statute forbidding sodomy, fellatio, and cunnilingus by adhering to an originalist reading of the right to intimate life and ignores that law is disproportionally applied to homosexuals. Normally is anti-orginalist (see Williams v. Florida, equal protection, free speech etc) but prefers orginalist reading when dealing w/ unenumerated rts (same in Roe, Griswold). Since founders w/n have considered homosexuality a protected privacy rt, d/n have to get to next step of whether state has a compelling secular purpose.

1. 
   Blackmun: argues that rt of intimate life has nothing to do with sexual orientation. No compelling purpose here, same rt as in Griswold and Roe.
   
2. 
   Powell: d/n join majority or dissent, later regrets his position, fears that decision encouraged homophobia & stifled gay rts. He w/n an originalist for Roe and Griswold but was here
   

Lawrence v. Texas (2003) p. 602

1. 
   Here Texas statute against non-procreational sex only for ppl of same gender. This targeting only makes difference for O’Connor who w/n overrule Bowers and overturns law on Equal Protection grounds. Majority overrules Bowers, on const privacy grounds.
   
   1. 
      Kennedy: liberty presumes autonomy of self that includes freedom of thought, belief, expression & certain intimate conduct.” Strikes down Bowers’ history arg & reevaluates history. Takes connotative reading of intimate rts but still historically sensitive. Objective of historical laws was opposition to non-procreational sex in general, not specific to gays.
      
      1. 
         Comparative law developments (ALI in 1955, Wolfendon report, Dudgeon in 1981) which decriminalized gay/lesbian sex in EU as violating constitutional privacy. Suggests that this is a universal human rt. Also see Romers v. Evans:
         
      2. 
         Disagrees w/ O’Connor b/c: afraid that if struck down this law on Equal Protection clause, then Texas can redo the law to apply more broadly.
         
      3. 
         No valid secular purpose for Texas law (Plato’s arguments) (1) not having children which takes away our need for young men, (2) two men having sex w/ one another means one is going to be passive and resemble a woman, and (3) health risks.
         
   2. 
      p. 607: Scalia says that decision threatens adultery, premarital sex, prostitution, polygamy, adult incest, bestiality or coercion to minors laws. Kennedy’s argument refutes all of these concerns except for premarital sex