Equal Protection or Substantive Due Process?  The Court has alternated in their analyses in the Sexual Orientation cases.  In the Obergefell decision, Justice Kennedy’s opinion is completely unclear as to which analysis he was using (if either  But regardless of whether Substantive Due Process or Equal Protection is used, the Essential Question remains the same:  Does the government have a legitimate interest in condemning homosexuality as Immoral?

Should Sexual Orientation be considered a Suspect Classification?  4 Considerations generally determine whether a group qualifies for suspect classification status:  1) History of Discrimination?  Requires a judgment of how a group Ought to be treated  2) Political Powerlessness  Homosexuals participate strongly as Individuals; but as a Group?  3) Immutability?  Science is inconclusive at this point; opinions usually relate to a substantive judgment. At any rate, is this Relevant?  4) Discreteness and Insularity?  Neither applies to homosexuals; but this may Contribute to Powerlessness. Also, many homosexuals may not be Discrete (identifiable) as a Result of discrimination

State Regulation of Sodomy  Until 2003, many states had laws on the books that criminalized certain types of sexual contact, typically characterized as “sodomy”  Bowers v. Hardwick (1986)  Georgia statute banning Sodomy—as applied to homosexuals—is Upheld.  Substantive Due Process analysis:  The right to engage in Sodomy is held to Not be a Fundamental Right;  Therefore Rational Basis Review is employed  Traditional Morality is held to be a Legitimate government interest, and Justifies this statute  Lawrence v. Texas (2003)  Texas ban on homosexual sodomy is Struck Down. Bowers is directly Overruled  Majority uses Due Process analysis, but does Not identify a Fundamental Liberty Interest.  Law is struck down under Rational-Basis standard  Kennedy begins by discussing “autonomy of self”—which would seem to implicate bans on Same-sex Marriage. But in other parts of the opinion, the issue is defined quite Narrowly; to exclude such an implication

Same-Sex Marriage  U.S. v. Windsor (2013)  The Federal Defense of Marriage Act (DOMA) defined marriage under federal law as unions of one man and one woman, and allowed states to refuse to recognize same-sex marriages performed in other states  In a 5-4 decision, DOMA is struck down  As usual in these cases, the Court’s reasoning is unclear  Officially, the statute is struck down using rational basis review, under the Due Process Clause  But the opinion also discusses equal protection and federalism (the original “privileges and immunities” clause  Obergefell v. Hodges (2015)  STATE bans on same-sex marriage are struck down  Same-sex marriage is now legal everywhere in the country  Majority opinion says that bans on same-sex marriage violate BOTH Due Process and Equal Protection

Student SCOTUS: The Case of the Gay Wedding Cake  David Mullins and Charlie Craig visited Masterpiece Cakeshop in July 2012, with Craig's mother, to order a cake for their upcoming wedding reception. Mullins and Craig planned to marry in Massachusetts and then celebrate with family and friends back home in Colorado. Masterpiece owner Jack Phillips informed them that because of his religious beliefs the store’s policy was to deny service to customers who wished to order baked goods to celebrate a same-sex couple’s wedding.  The Colorado Civil Rights Commission and the Colorado state courts determined that Cakeshop’s refusal to sell a wedding cake to Mullins and Craig constituted unlawful discrimination based on sexual orientation. Cakeshop’s owners appeal the case, arguing that a court order that they provide the cake violates their free exercise of their religious beliefs.  How should the Supreme Court decide this case?