Right. That’s why overturning Lawrence now would be an unpredictable result. Stare decisis is the principle that courts should follow existing precedent (where applicable), not that they should restore existing case law to a previous state.
I’m with Hamlet. As I said, O’Connor’s rationale seemed like a transparent way to strike the statute down on equal protection grounds without having to hold that intermediate scrutiny is appropriate for sexual orientation.
It was certainly a transparent effort to avoid having to overturn the Bowers holding on Due Process. But the Equal Protection analysis was on solid precedential ground, since the Court had used the same low-level-with-teeth scrutiny to strike down Colorado’s constitutional blessing of government discrimination based on secual orientation (what was that case’s name?) a few years earlier.
No – in Romer, the Court found that the government was discriminating impermissibly on the basis of sexual orientation, as you state above. But O’Connor’s concurrence didn’t say this – it said that the government was discriminating impermissibly on the basis of gender, a completely different thing. The former acknowledges that laws targeting sexual orientation might be subject to greater scrutiny than simple rational basis; the latter doesn’t.
The former acknowledges that laws targeting sexual orientation are subject to greater scrutiny than simple rational basis; the latter doesn’t.
I’ll accept your distinction that Romer used “sexual orientation” and O’Connor’s concurrence used “gender” for their respective labels, but my recollection (I haven’t read them in some time) is that the level of scrutiny in both cases was identical: low-level, i.e., “rational basis” scrutiny. At least, I’m positive it was low-level (with teeth, obviously) scrutiny in Romer; O’Connor might have gone with intermediate scrutiny for the gender-based classification at issue in Lawrence.
But that’s all getting to be speculative on my part since I don’t remember the details all that terribly clearly. I’ll defer to anyone who’s read them recently.
Rational basis with teeth, yes.
Justice O’Connor:
And, reading O’Connor’s concurrence, I withdraw my earlier criticism. She does view sexual orientation as a suspect class, not just gender:
I’m still surprised that Bricker approves of her opinion, however, given his previously asserted belief in the extreme deference accorded to the legislature under rational basis review.
If these girls told there parents about pregnancy we wouldn’t be having this discussion.
You ask what protections we give to the girls that carry the child to term and I say there are none we can give. We can’t force a girl to tell her parents when no one else even knows she is pregnant. We can force her to notify her parents before having an abortion.
The point of parental notification is to give the legal guardians input into the medical decisions of their ward. Telling them after the fact doesn’t accomplish that.
You speak as though minors have independent choices in medical procedures. They don’t, ultimately the guardian is the one that makes those decisions.
It serves the purpose for parents to have a say in their childs medical decisions.
What exactly is the purpose of this paragraph, do you see anyone in this thread acting like that?
Let me expand a bit, and maybe it will make more sense. O’Connor would treat classifications based on sexual orientation as subject to intermediate scrutiny, just like gender dsicrimination. I agree that there is no legal precedent for that determination… but there wasn’t any legal precedent for treating gender as deserving intermediate scrutiny once upon a time.
If that standard is accepted, then we save Lawrence’s result without reaching into the Magic Polymorphic Hat of Substantive Due Process, and we have a principled method of analyzing EP claims relating to sexual orientation in the future. (By “principled” I mean avoiding Gadarene’s hidden-process ratiional-basis-with-teeth standard.)
If it were rational basis review, I wouldn’t. Under intermediate scrutiny, I would.
Are you talking about someone in this thread, or in the general population of the world?
You’re offering a strawman argument: you are defeating an argument that you constructed yourself - not an argument actually offered by anyone here on the opposing side.
No, she wouldn’t. See below.
Why is this ‘my’ standard? The quote I gave regarding the “more searching form of rational basis review” came from O’Connor’s concurrence itself. Nowhere in the concurrence does she apply the substantially-related-to-an-important-state-interest rubric that is the hallmark of intermediate scrutiny. Rather, she repeats several times that she’s applying rational basis review, and denies that the statute forwards even a legitimate state interest. For example:
So I repeat:
My surprise was that you would subject legislation discriminating against homosexuals to intermediate scrutiny. In every other thread on the issue, I don’t recall you ever standing by that proposition, and, in fact, I thought you had rejected it. Hence my surprise.
What you’re missing is that there are already state and federal agencies and bureaus, private organizations, and groups to deal with battered/abused minors, including sexual abuse; the teenaged girl impregnated by her male relatives will have not only the full weight of law enforcement behind her (cops detest child molesters and sexual predators in general), but municipal, state and federal agencies lining up to provide medical assistance, counseling, and shelter.
Your boogeymen “evil [male] parents” are a nonstarter.
But taking parents out of the loop in all other cases further erodes a parent’s right to govern their minor children as they see fit w/in the limits of the law, and instead puts it into the hands of the minor who, in the case of abortion, has obviously failed at least once already to exercise discretion and judgement.
You’re failing to address the concern about girls who are afraid they will be abused or abandoned if they are ratted out to their parents. If they are disbelieved by some judge because his magic truth-telling abilities didn’t work that day (or maybe he’s just an asshole with axe against abortion) then she is NOT going to be protected from abuse or abandonment. You are not addressing the concern that girls who are faced with such a threat may seek more despearte choices
There is no right of parents to “govern” the reproductive choices of their children. That choice belongs exclusively to the person who lives in that body
How has she “failed” to exercise judgement by seeking an abortion? That sounds like excellent judgement to me.
Then my mistake. I always thought her dicta was internediate scrutiny for sexual orientation. If she didn’t say that, then I DON’T agree with her.
But I’d still support intermediate scrutiny over rational-basis-with-teeth, or even rational basis.
Actually, I think you’ll find that if you review everything I said, while I spent a great deal of time showing (correctly, I might add) why same-sex marriage laws survive a rational basis test, and saying that this was the appropriate test under the law, I never rejected it, except as inconsistent with precedent. But I did say even then that it would be better to simply decalre that this is a new category of classification subject to intermediate review as opposed to simply shoe-horning it into failing rational basis.
I think the WISEST course is to permit the states to legislatively correct the problem. But if there is a judicial solution, it’s far more honest to place sexual orientation into the intermediate scrutiny camp. And I have always acknowledged that same-sex marriage laws would not survive intermediate scrutiny.
Huh? If I, as a parent, forbid my 12 year old daughter from seeing her her boyfriend, can my daughter take me to court? Will the judge rule that I have infringed on the reproductive choice of my daughter and that I must let her spend time with the boyfriend?
Huh? What does spending time with a boyfriend have to do with reproductive choice? Of course you have the right to protect your daughter from being molested.
Let me put it another way, there is no parental right to force a pregnant daughter to remain pregnant against her will (or to force her to terminate that pregnancy).
Are you saying anyone who has sex but doesn’t want children has failed to exercise discretion and judgment? I really don’t see any other way you and cmkeller could claim that any minor seeking an abortion is automatically lacking in judgment.
OK, that’s something entirely different than what you said earlier. I can agree with that statement.