Russia took over the chairmanship of the UN Security Council (UNSC) June 1, and Ugandan Minister of Foreign Affairs Sam Kutesa took over the Presidency of the UN General Assembly (UNGA) June 11. One of these nations is currently at the top of world headlines for aggression in Ukraine, and both have recently made headlines for passing strict anti-gay legislation–in contravention of and threatening the guarantees of the UN Charter of Rights and Freedoms, according to top UN representatives.

When Russia passed anti-gay laws before the 2014 Olympics in Sochi, the UN took several measures to condemn the laws. “The United Nations stands strongly behind our own ‘free and equal’ campaign,” said UN Secretary General Ban Ki-Moon in condemning Russia’s legislation. “Hatred of any kind must have no place in the 21st century.”

“As I have been repeatedly and consistently stating in the spirit and framework of the Universal Declaration of Human Rights,” Ki-Moon continued, “that everybody is born free and equal and everybody has a right to be equal, regardless of age, and sex, and sexual orientation, and gender identity. This is a fundamental principle of human rights.”

When Uganda signed into law its strict Anti-Homosexuality Act in February–for which some Ugandan legislators were proposing the death penalty, although the proposal was dropped in favor of life in prison–the UN spoke out against the legislation, saying it violates basic human rights and endangers homosexuals and others.

“This law will institutionalize discrimination and is likely to encourage harassment and violence against individuals on the basis of their sexual orientation,” stated UN High Commissioner for Human Rights Navi Pillay. “It is formulated so broadly that it may lead to abuse of power and accusations against anyone, not just LGBT people.”

Pillay and Ki-Moon voiced deep human rights concerns. “This law violates a host of fundamental human rights,” continued Pillay, “including the right to freedom from discrimination, to privacy, freedom of association, peaceful assembly, opinion and expression and equality before the law – all of which are enshrined in Uganda’s own Constitution and in the international treaties it has ratified.”

The June agenda for the UNSC will include a meeting in Afghanistan and meetings on African issues–particularly on Mali, Cote d’Ivoire, the Sahara-Sahel, Sudan and South Sudan.

The Middle East is also on the agenda for the UNSC, particularly Yemen, Libya and Syria. Other matters upcoming include armed drones and new peacekeeping missions where force may be mandated.

No talks on Ukraine have been scheduled. Russian UN Ambassador Vitaly Churkin said, however, that Russia was “ready for any surprises here,” noting that every UNSC member can call a meeting on any situation which poses an internatioal threat to peace and security.

Russia is one of the five permanent members of the UNSC, along with the US, China, Great Britain and France. There are 10 non-permanent members.

The UNSC makes decisions for the UN regarding peace and international security, and all UN members are supposed to heed UNSC decisions, in accordance with the UN Charter.

Russia will hand over the chairmanship of the UNSC to Rwanda on July 1.

Uganda to Lead United Nations General Assembly

The UNGA is composed of 193 member nations. The UNGA is the organ of the UN wherein all members have equal representation. The UNGA oversees the UN budget, receives UN reports and makes recommendations, and appoints non-permanent members to the UNSC.

The Presidency of the UNGA is a rotating one-year position, and is a largely ceremonial post.

The election of Ugandan Foreign Affairs Minister Sam Kutesa to the Presidency has drawn some criticism. Kutesa has a history of corruption and has been censured for corruption by the Ugandan Parliament. The government to which Kutesa belongs is also a cause for the criticism. The Ugandan government, headed for 28 years by Yoweri Museveni, has been accused and found guilty of international war crimes by international courts.

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Arizona Senator Steve Yarbrough sponsored the bill that has now passed the Arizona state Senate as SB1062 in response to several trials in which people who had denied particular services requested for gay weddings had been sued under Arizona’s human rights laws, essentially forcing people in any business (other than private clubs and churches) to serve gay weddings even if their religious beliefs are contrary.  One such case was Elane Photography v. Willock (2013) (case and trial summary), in which a Christian photographer was sued for discrimination because she declined to photograph a gay wedding due to her religious convictions.

The Arizona bill was first drafted in January with the intention that it would protect religious rights (already protected by the First and Fourteenth Amendments but ruled by Arizona’s high courts to be inferior to the protections written into the state’s anti-discrimination laws, which contain special protections for several named “protected groups,” including those who have sexual orientation toward the same-sex.

The bill amends the existing Arizona Religious Freedom Restoration Act to read:

A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.

B. Except as provided in subsection C, government OF THIS SECTION, STATE ACTION shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.

C. Government STATE ACTION may substantially burden a person’s exercise of religion only if it THE GOVERNMENT OR NONGOVERNMENTAL PERSON SEEKING THE ENFORCEMENT OF STATE ACTION demonstrates that application of the burden to the person PERSON’S EXERCISE OF RELIGION IN THIS PARTICULAR INSTANCE is both: In furtherance of a compelling governmental interest. The least restrictive means of furthering that compelling governmental interest.

D. A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding, and obtain appropriate relief against a government REGARDLESS OF WHETHER THE GOVERNMENT IS A PARTY TO THE PROCEEDING.

E. A PERSON THAT ASSERTS A VIOLATION OF THIS SECTION MUST ESTABLISH ALL OF THE FOLLOWING: THAT THE PERSON’S ACTION OR REFUSAL TO ACT IS MOTIVATED BY A RELIGIOUS BELIEF. THAT THE PERSON’S RELIGIOUS BELIEF IS SINCERELY HELD. THAT THE STATE ACTION SUBSTANTIALLY BURDENS THE EXERCISE OF THE PERSON’S RELIGIOUS BELIEFS.

F. THE PERSON ASSERTING A CLAIM OR DEFENSE UNDER SUBSECTION D OF THIS SECTION MAY OBTAIN INJUNCTIVE AND DECLARATORY RELIEF. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs. E.

G. In FOR THE PURPOSES OF this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.

H. FOR THE PURPOSES OF THIS SECTION, “STATE ACTION” MEANS ANY ACTION, EXCEPT FOR THE REQUIREMENTS PRESCRIBED BY SECTION 41-1493.04, BY THE GOVERNMENT OR THE IMPLEMENTATION OR APPLICATION OF ANY LAW, INCLUDING STATE AND LOCAL LAWS, ORDINANCES, RULES, REGULATIONS AND POLICIES, WHETHER STATUTORY OR OTHERWISE, AND WHETHER THE IMPLEMENTATION OR APPLICATION IS MADE BY THE GOVERNMENT OR NONGOVERNMENTAL PERSONS.

The text of the bill contains several pieces of language that reflect the decisions of the New Mexico Supreme Court in its finding against Elane Photography last summer (August 2013).

In Section D., the bill allows assertion of religious rights “regardless of whether the government is a party to the proceedings.”  In Elane, the court ruled that Elane’s argument that the New Mexico Human Rights Act (NMHRA) (under which Elane was charged with discrimination) violated the New Mexico Religious Freedom Restoration Act (NMRFRA) was not a valid argument because the NMRFRA was not applicable in disputes where a government agency is not a party.

In Section F., the bill provides injunctive and declaratory relief, including attorney fees and costs, for people successfully asserting a claim under the bill (should it become an act).  In Elane, Elane Photography was sued for attorney fees to the amount of $6,637.94, payable to Vanessa Willock, the woman who propositioned Elane Photography to consider photographing her gay wedding.  Willock’s dealings with Elane only amounted to a few emails inquiring about service, and Willock found another, cheaper photographer for her wedding.  Elane, which was found guilty of discrimination, sought in its three trials (and seeks in its pending petition to the U.S. Supreme Court) a reversal of the award and a declaratory judgement that it had not discriminated, as well as a ruling that its rights had been violated.

By Day Blakely Donaldson

Sources:

Land and Sea Journal
AZ Central

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After Elane Photography, LLC, was ruled against unanimously by the New Mexico Supreme Court in August, 2013, Elane petitioned the U.S. Supreme Court to review the issue of whether a religious person who works as a photographer must be forced to photograph a gay marriage, in accordance with the New Mexico Human Rights Act (NMHRA), if that person is asked by a homosexual to so do (case and trial summary).

The question asked of the Supreme Court in the petition, written by the Alliance Defending Freedom (headed by Jordan Lorence) is this:

“Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.”

In 2006 a small limited liability husband-and-wife photography business, specializing in photo-journalistic wedding photos (the company creates photographs and a picture-book telling the story of a wedding), declined to photograph a lesbian wedding, after which Vanessa Willock, the woman who contacted the Huguenins (the couple who owned Elane Photography) with the proposal, filed a complaint with the New Mexico Human Rights Commission (NMHRC), claiming that she had been discriminated against based on sexual orientation by Elane Photography. The NMHRC found that she had. The case proceeded through the district court and appeals court to the New Mexico Supreme Court. All courts agreed with the NMHRC that Elane was guilty of discrimination based on sexual orientation.

Elane Photography denied this charge before the first hearing of the case and still denied the charge after the New Mexico Supreme Court ruling and at the time of the current petition to the U.S. Supreme Court. Elane Photography has always held that it will serve any person, regardless of class, but will deny requests by any person to do work that Elane believes is wrong.

The petition filed by Elane Photography also expressed concern that by compelling artistic workers to speak in conflict with their consciences–in violation of First Amendment freedoms of expression-drives these workers from the marketplace. The petition asked the Supreme Court to answer whether the First Amendment permits this. “Whether professional creators of speech are disqualified from this First Amendment protection–and thus whether their expression creating skills may be co-opted by private parties through government coercion–is a question of great national importance,” the petition states.

The petition points to the language of the First Amendment, which reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…” The petition also looks at precedent case law, which, although cited by the New Mexico Supreme Court in its finding against Elane, is claimed to rather conflict with the decision made by that same court. The petition also states that the New Mexico Supreme Court’s decision requires citizens to speak in conflict with their religious beliefs and deepest convictions any time they are working as a public accommodation (a business that is used by the public, whether a public or private entity–including retail stores, rental establishments, service establishments, but not including private clubs or religious institutions).

By Day Blakely Donaldson

ADF Media
ADF Media
Land and Sea Journal

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Two cases mark the recent change in the legal status of homosexual marriage: Baehr v. Lewin (1993) and Goodridge v. Department of Public Health (2003). In Baehr, the finding of a constitutional right based on the guarantees of equal protection was not enough to change laws prohibiting gay marriage, but in Goodridge, where the same equal-rights guarantee was found, the state interest claims did not convince the majority of justices that homosexual marriage should remain prohibited. The constitutionally protected right of homosexuals to engage in sex was secured in a case which concluded months before Goodridge–Lawrence v. Texas (2003).

The right of gays to marry was based on the U.S. and state constitutions, which guarantee equal rights.

Three couples, who met all other marriage requirements, were denied licences in 1990, after which they filed a lawsuit in 1991 against the Hawaii Attorney General, John C. Lewin, seeking to have the exclusion of gays from marriage certification declared unconstitutional. Lewin was replaced by the State Director of Health, Lawrence H. Miike in later stages of the trial proceedings. In 1993 the Court found that denying homosexuals marriage licences was unequal treatment and therefore unconstitutional, and ordered the state to provide evidence of justification for abridging Constitutional rights. Judge Chang ruled in 1996 that none of the state’s claims to compelling interest in restricting marriage rights were valid by the strict scrutiny test, and even if the state had proven such interests, the state had failed to prove that the statute was narrowly tailored to avoid unnecessary abridgment of constitutional rights. Chang ordered the state not to refuse marriage licences to any qualified applicants, including same-sex couples, but stayed the ruling because of the position newly married couples would be in if the Supreme Court later reversed Chang’s decision. In 1998 Hawaiian voters approved an amendment to the Hawaii constitution limiting marriage to opposite-sex couples and in 1999 the Supreme Court did overturn Chang’s judgement.

The first U.S. Supreme court trial to find that same-sex couples had the right to marry was Goodridge v. Dept. of Public Health (2003). Gay and Lesbian Advocates and Defenders (GLAD), on behalf of several same-sex couples who had been denied marriage licences in 2001, sued the Massachusetts Department of Health. The Superior Court found for the defendants, believing that altering the Commonwealth’s centuries-old tradition of restricting marriage to opposite-sex couples was a matter for the legislature, who had, the Court noted, recently defended same-sex marriage limitations.  The trial was appealed to the Supreme Court.

After looking at the state constitution’s guarantee of equal protection and due process, a small majority (5-4) found the prohibition of one class of citizen’s licence to marry was unconstitutional, and found that no rational reason existed to override this constitutional right. The large minority found several of the state’s interest claims convincing, such as the importance of marriage as an institution based on the raising of children and the state’s reluctance to assign equal benefits, obligations, and responsibilities to homosexual couples through marriage. Another reason for dissent was the belief that the power to regulate marriage lies not with the judiciary, but with the Legislature, and therefore, even if the ruling in favor of gay marriage was a step forward socially, it was a misstep legally and constitutionally.

By Day  Blakely Donaldson

Sources:

Justia
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In the 80s and 90s, laws against homosexual activity were first upheld as not in violation of Constitutional rights and later reversed as being in violation–Bowers v. Hardwick (1986) and Lawrence v. Texas (2003).

In Bowers v. Hardwick, two Georgia men were arrested for sodomy when a police officer tasked with serving a warrant for public drinking found the men engaged in sex at Hardwick’s home. After the local district attorney decided not to proceed with the case, Hardwick brought suit against the Attorney General of Georgia, Michael Bowers, seeking a declaration that the state’s laws against homosexual sex were invalid. The ACLU wanted to try the case. The district court found for the Attorney General, the appeals court reversed this, and the case proceeded to the Supreme Court.

The result was that the Supreme Court found against Bowers in a 5-4 decision. The court found no constitutionally protected right to engage homosexual sex and upheld the Georgia statute as valid. Justice White wrote the majority opinion, which cited historical precedents condemning homosexual sex.

The dissenting opinion was written by Justice Blackmun (although Blackmun has since revealed that it was in fact his clerk who primarily authored the dissent), who disagreed with the majority’s focus on homosexual activity, writing that the case was no more about a right to engage in sodomy than Stanley (1969) was about a right to watch obscene movies or Katz (1967) was about a right to place interstate bets from a telephone booth; these cases, Blackmun contended, were about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone,” quoting Justice Brandeis in Olmstead (1928). Blackmun continued, “Unlike the Court, the Georgia Legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens,” and stated that his finding was that the Georgia law under which Bowers was being tried was broad enough to also reach heterosexual couples engaging in anal or oral sex.

“(A) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. . . .”

“(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. . . .” (Georgia Code Ann. § 16-6-2 [1981])

Blackmun wrote:

“Only the most willful blindness could obscure the fact that sexual intimacy is ‘a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality,’ Paris Adult Theatre I v. Slaton (1973); Carey v. Population Services International (1977). The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many ‘right’ ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds.”

Blackmun pointed not to a specific right to engage in homosexual activity, but to broad principles that have informed the treatment of privacy in specific cases. Blackmun held that the same protections that defended liberty and privacy interests in those other cases should apply in Bowers.

Blackmun again referred to Brandeis in Olmstead:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.”

At the time of Lawrence v. Texas (2003), it was illegal in 13 states to engage in consensual homosexual sex–this number was down from 25 at the time of Bowers, although it has been noted that a certain pattern of nonenforcement with respect to consenting adults acting in private had existed. That number was in turn down from 50 before 1961.

Lawrence and a man visiting his house were arrested on the night of September 17, 1998 outside Houston, Texas, when a jealous rival called in a false police report about “a black male going crazy with a gun” in Lawrence’s apartment. After contradicting accounts of homosexual activity by the arresting officers, the two men were charged and pled no contest to “homosexual conduct.” The jealous lover pled no contest to filing a false police report and was sentenced to 30 days in jail.

Lawrence et al. opted neither to plea their innocence nor to accept a minor fine and criminal charge, but to take on the law that outlawed, in effect, homosexuality.

By pleading no contest, Lawrence at al. waved their right to a fair trial, but asked the court to dismiss the charges on the basis of the unconstitutionality of the anti-sodomy laws. Lawrence claimed that because the law prohibited sodomy between homosexual couples, but did not prohibit sodomy between heterosexual couples, the law was unconstitutional under Fourteenth Amendment equal protection grounds:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.”

After being denied the Fourteenth Amendment defense motion in their first trial, Lawrence appealed, and the Texas Fourteenth Court found that the Texas law violated the 1972 Equal Rights Amendment of the Texas Constitution (sec. 3):

“All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.

Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative”. (Added Nov. 7, 1972.)

The Appeals court found the law unconstitutional, but a year and a half later reviewed the case en blanc and reversed the decision, finding the law constitutional.  Lawrence petitioned the Supreme Court, asking the Court to consider:

1. Whether the petitioners’ criminal convictions under the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws?

2. Whether the petitioners’ criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

3. Whether Bowers v. Hardwick should be overruled?

The Supreme Court, which examined the case in terms of “the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct,” found that consenting adult homosexuals had a right to sex in their homes. The Texas law, which outlawed “any contact between any part of the genitals of one person and the mouth or anus of another person; or… the penetration of the genitals or the anus of another person with an object” (§21.01[1]), was unconstitutional, violating the Fourteenth Amendment Due Process Clause, the Court found.

Justice Kennedy wrote the majority opinion, in which he criticized the judgement of Bowers and placed Lawrence in a tradition of Constitutional interpretation with Griswold, Eisenstad, Roe, Planned Parenthood, Bowers and Romer, framing a narrative of progressive application of Amendment guarantees to privacy protections regarding human rights.  The majority viewed Bowers this way:

“[T]he Court’s failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do no more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.”

The court looked to determine “whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.”  The majority found that they were.  The court sought to find if any valid state claims existed that would pass the strict liability test. According to the majority opinion:

“The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”

A 6-3 decision stuck down the Texas law.  The court overturned Bowers v. Hardwick.

“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

Kennedy offered an opinion on privacy in general and the court’s opinion on homosexual sex regarding Lawrence particularly:

“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.

“The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

*     *     *     *     *

The differing interpretations of Amendment guarantees and reliance on other informative sources such as caselaw, moral codes, and traditional attitude towards various groups of people or activities in Bowers and Lawrence show a lack in the U.S. Constitution to provide expected human rights protections for homosexuals.

In Bowers, the dissenting opinion of the Court followed, expanded and extended interpretations of Amendment guarantees found in Griswold (1972) and Eisenstadt (1972) to sexual privacy rights for homosexuals. The majority disagreed, however: it found that there was no Constitutional protection for homosexual sex. But this opinion based its decision on a tradition of condemning homosexuality.

This decision was overturned in Lawrence, but the Constitutional basis was questionable. In Lawrence‘s 6-3 decision, five justices believed the statute violated Fourteenth Amendment Due Process Clause and one–who had been in the Bowers majority–believed it violated rather the same Amendment’s equal protection guarantees.

The majority opinion explained that “the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution,” and sought to find what the Due Process Clause protected. Kennedy’s opinion listed a progression of Court interpretations of Amendment guarantees in a sort of narrative scheme of liberating rulings, starting with Griswold and proceeding through Eisenstadt and Roe to Planned Parenthood to Bowers and Romer.

Griswold recognized the right of privacy in the home of married people and Eisenstadt extended the protection to unmarried couples for any procreative (or not) sexual activity. Eisenstadt had based this right on the Equal Protection Clause. Although the Lawrence Court favored the Due Process Clause as a basis for protection, Justice Kennedy quoted Brennan in Eisenstadt for an extension of privacy protections to homosexuals:

“It is true that in Griswold the right of privacy in question inhered in the marital relationship …. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

The basis of this protection in the Due Process Clause was argued as false by many dissenters. Justice Scalia wrote:

“Though there is discussion of ‘fundamental proposition[s],’ and ‘fundamental decisions,’ nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right’ under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a ‘fundamental right.’ Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: ‘[R]espondent would have us announce … a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.’ Instead the Court simply describes petitioners’ conduct as ‘an exercise of their liberty’-which it undoubtedly is-and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case.”

An oral argument at Lawrence‘s Supreme Court trial questioned the propriety of protecting any consensual adult sexual activity in the privacy of a home, stating,

We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose…. And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything…. It all comes from, I would argue, this right to privacy that doesn’t exist in my opinion in the United States Constitution, this right that was created…in Griswold… .”

By Day Blakely Donaldson

Sources:

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“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.” (Section 3 definition of marriage)

The Justice Department, although it approved the ruling, appealed in order to bring the case to the Supreme Court. The appeals court upheld the ruling, marking the first time a federal court of appeals had held that laws that classify people based on sexual orientation should be subject to heightened scrutiny. At the Supreme Court trial, the Department of Justice had filed a question for the Court that the Court consider “Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection” for homosexuals. The Court asked the parties to argue two other questions as well. The first question was whether the government’s agreement with the Second Circuit’s decision deprived the court of a “real dispute” and therefore of jurisdiction to hear the case. The second question dealt with Article III of the U.S. Constitution, which forbits parties which do not themselves have a real and personal (“particularized”) complaint from filing a case or appeal in federal court. The question was whether–since the government may be found to be not a valid petitioner–Bipartisan Legal Advisory Group (BLAG) itself had standing. If both the government and BLAG lacked standing, the appeal would be dismissed automatically, as had happened in Hollingsworth v. Perry. U.S. v. Windsor’s 5-4 majority found that DOMA Section 3 violated the Fifth Amenmdent:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Court ruled that Section 3 was an unconstitutional “deprivation of the liberty of the person protected by the Fifth Amendment,” and also cited state autonomy and equal protection as bases for unconstitutionality. The Court offered moral and rational reasons for recognizing same sex marriage and why DOMA was a hardship to homosexual couples and others. The Fifth Amendment violation was based on a finding that DOMA Section 3 sought to displace the protection intended by the state’s marriage laws. The laws, the court wrote, purposed to protect the personhood and dignity of individuals in marriage, and DOMA Section 3 treated those individuals as living in marriages less respected than others. No legitimate purpose, the Court reasoned, overcomes the state’s purpose to protect its members. Since Windsor, several lower court rulings have found that state prohibitions of same-sex marriage were unconsitutional, leading to changes in state policy regarding gay marriage in 2013 and 2014.

*     *     *     *     *

U.S. v. Windsor, perhaps rather than showing a lack in the U.S. Constitution to protect a right to homosexual marriage, was a misuse of Court powers. The minority opinion for the case, written by Justice Scalia, argued that in Windsor the Court had “cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat.”

“This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.” “Windsor’s injury was cured by the judgment in her favor. [...] What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction.”

The minority also disagreed with the majority’s belief that the purpose of DOMA was to to ‘disparage,’ ‘injure,’ ‘degrade,’ ‘demean,’ and ‘humiliate’ our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence–indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race. Scalia was not sure that the theme of the ruling was, as his fellow dissenter believed, “the Federal Government’s intrusion into an area ‘central to state domestic relations applicable to its residents and citizens,’” but remarked on the Constitutional issues of the case, “if this is meant to be an equal-protection opinion, it is a confusing one.” However, despite the Court’s dubiosuly legal “invalidation of democratically adopted legislation,” President Obama stated that the legal victory was a “victory for American democracy” and commented that “as a president as opposed to a lawyer,” he “personally believed” that under federal law people married in one state should be able to obtain the benifits of any legally married couple in other states.

By Day Blakely Donaldson

Source: Findlaw

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