PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY (US SC – 1992; Pg.

183)

FACTS: a family planning clinic challenged the constitutionality of a PA law placing certain restrictions on a
woman’s right to obtain an abortion

RULE: The state can regulate and place restrictions on abortion so long as those regulations do not impose an
undue burden on the woman’s ability to make the abortion decision; when an undue burden results, the
regulations are unconstitutional

DECISION: UPHOLDS ROE v. WADE – and gives guidance to courts to conform w/ constitution.
Constitutional protection of the woman’s decision to terminate her pregnancy derives from the DPC. The
Constitution promises that there is a realm of personal liberty which the govm’t may not enter. Marriage is
not mentioned in the B of R’s, but the Court was no doubt correct in finding that it is protected by the
substantive component of the DPC. Neither the B of R’s nor the specific practices of States at the time of the
adoption of the 14th AM marks the outer limits of the substantive sphere of liberty which the 14 th AM protects.
In this vein, our law affords constitutional protection to personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and recognizes “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 a or beget a child.” – matters central to liberty protected by the 14 th AM.
- At heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, of the
mystery of life – beliefs about these cannot define the attributes of personhood were they formed under
the compulsion of the state.
- Though abortion is conduct – state can’t proscribe it in all instances b/c the liberty of the woman is at
stake in a sense unique to the human condition- her suffering is personal – our reservations about Roe
are outweighed by the explication of individual liberty we have given combined with the force of stare
decisis.
Stare Decisis: to decide if required to follow a prior holding, court may inquire whether that prior holding has
been found unworkable; whether the rule’s limitation on state power could be removed w/o serious inequity
to those who have relied upon it or significant damage to the stability of the society governed by it; whether
the law’s grown in the intervening years has left the holding a doctrinal anachronism discounted by society;
and whether the holding’s premises of fact have so far changed as to render it irrelevant or unjustifiable in
dealing with the issue it addressed.
- Abortion is workable, women have made economic & life choice under consideration that abortion is
available; no doctrinal evolution or development of constitutional law since Roe medical advances have
no effect on Roe’s central holding – the soundness of the ruling does not turn on when viability occurs, it
is only a critical fact.
o Therefore, Stare Decisis indicates that court upholds ROE
- The line between the State’s interests and the mother’s right to an abortion must continue to be drawn at
viability, so that before that time a woman has a right to choose (this Court REJECTS the rigid trimester
framework)
- Also, although a woman has a right to obtain an abortion before viability, it does not follow that the State
is prohibited from taking steps to ensure that this choice is thoughtful and informed – States can enact
laws that provide a reasonable framework for a woman to make a decision that has such profound and
lasting effect
- The fact that a law which serves a valid purpose has the incidental effect of making it more difficult or
more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation
imposes an undue burden on a woman’s ability to make this decision does the power of the State
reach into the heart of the liberty protected by the DPC. The very notion that the state has a
substantial interest in potential life leads to the conclusion that not all regulations must be deemed
unwarranted and not all burdens on the right to decide whether to terminate a pregnancy will be
undue. The undue burden standard is the appropriate means of reconciling the State’s interest with
the woman’s constitutionally protected liberty. A finding of undue burden is a shorthand for the
conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the
paty of a woman seeking an abortion of a nonviable fetus. Unless it has that effect on her right of
 choice, a State law designed to persuade her to choose childbirth over abortion will be upheld if
reasonably related to that goal. Regulations designed to foster the health of a woman seeking an
abortion are valid if they do not constitute an undue burden
 Pres. Bush names Souter & Thomas to replace Brennan & Marshall
o Kennedy switches his vote => 5 votes to retain Roe
 Votes to retain the basic right to terminate a pregnancy – what we wind up with is 5
members of the court writing the majority opinion (plurality opinion) – and the opinion
is unique – it is a JOINT opinion (really haven’t seen that before – the opinion is authored
by many justices)
o O’Connor/Kennedy/Souter Stevens Blackmun
 Right to abortion found in 14th DP “liberty”
 Roe was ambiguously grounded in a broad reading of B of R’s and DP Liberty – CASEY
abandons the penumbralist/broad textualist approach of Roe and finds the right to
terminate a baby squarely in pure substantive due process
o Serves not merely to “incorporate” Bill of Rights
 Court says that the DP Liberty does more than serve as a window for
incorporation, it is an independent source of rights …
 Found by examining our Nation’s history, legal traditions, and practices
o A way to respond to criticism of substantive due process as a way of
saying they are just injecting their morals into constitutional rights; the
Judges are saying they are constricted and they are looking at deeply
rooted history and tradition in oru culture
o Independent source of rights
 Rejects Scalia fn.6 (most specific level of generality)
o Right to choose is attribute of “personhood”
 an attribute of “womanhood”
JOINT OPINION:
 Role of Stare Decisis
o In developing right of privacy/choice, Court is engaged in traditional “common law” function
 natural evolution of family/privacy rights
 yet abortion is qualitatively different <= Rehnquist
o Rule of law requires continuity
 Creates expectancies, legal landscape of society
 How has society changed in response to Roe?
 Economic / women’s stauts
 Even if precedent wrongly decided or unsound?
 Changed conditions? The biggest changed condition … the woman from Roe is now
an anti-abortion activist
 Redrawing the line between privacy/state
 Replace trimester framework with “viability”
 At some point as strong as women’s interest… no trimester to viability - and
viability is a function of medical progress
o Why doesn’t stare decisis apply here as well?
 Is Rehnquist right that only a shell of Roe remains?
 Adopts a bit of Webster
o State has interest in “potential life” through all stages of a woman’s pregnancy
 Manifestation of state interest
 May proselytize (prefer birth over abortion)
 Can make abortion more difficult to obtain
o So long as not “designed to strike at right itself”
 i.e. doesn’t rise to level of deprivation

 Undue Burden test

  If the state makes it more difficult to get an abortion by isn’t depriving you of the
right to get an abortion, this does not trigger strict scrutiny
 At what point does it rise to a level of deprivation? IF IT DOESN’T i.e. a sub
deprivation interference, then only rational basis review
o “Only where state regulation imposes an undue burden on a woman’s ability to [decide]” will
be subject to heightened scrutiny
 Use RB for restrictions that don’t rise to this level
o “purpose or effect of placing substantial obstacle in the path of [aborting] a nonviable fetus”
 Impermissible purpose to prevent abortion
 Impermissible means if abortion cannot be obtained
o Ultimate decision must remain woman’s, but state can influence it all it likes

 Penn Abortion Control Act

o Spousal notification: a married woman has to notify her husband before an abortion
o Informed Consent: the woman has to sign consent form, and she has to know what she is
doing – and the way the State knows that she knows what she is doing is by giving her all of
this anti abortion propaganda
o 24 waiting period: after you have consulted the clinic and gotten the forms & propaganda,
you have to wait 24 hours to think it over
o Anti-abortion information: propaganda
o Parental consent for minors (judicial bypass): one or both parents to sign off on it; and
children who are under serious harm from their parents can go to a Judge to get consent
 Penn Abortion Control Act – HELD (all the others survived the undue burden test)
o Spousal notification
 Law is unnecessary in well-functioning relationships
 Potentially dangerous in dysfunctional ones
 Exceptions in law don’t really help
 Likely effect is to “prevent a significant number of women from obtaining an
abortion” (no evidence on the record about this, it is assumed)
 Not merely make abortions more difficult, but to prevent
 But only 1% of women who get abortions affected
 Number unimportant; look only at effect on those impacted
 Father’s and mother’s interest not comparable
 Penn Abortion Control Act
o Informed Consent
o 24 waiting period
o Anti-abortion information
o Parental consent for minors (judicial bypass)
Doesn’t create undue burden = rational basis; this is now the critical turning point; the law survives – this
now turns out to be the only step that matters
 How is undue burden test applied?
 Does Casey tell us? Everything collapses into the undue burden test…more ad hoc (not
that deferential) – the problem is that lawyers and lower courts don’t know how to
apply them (bright line tests the courts know what to do) – ad hoc is ‘I know it when I
see it’ – and that is harder for Courts to apply, but that is where we are – if the law
imposes an undue burden, apply strict scrutiny; if it doesn’t impose an undue
burden, rational basis and the law survives
o What standard of review to use?
o Whose ad hoc judgments count?
 What happens once Undue Burden found
o Case is functionally over; Strict scrutiny is only nominally applied
o Everything collapses into the undue burden test…
CONCURRENCE & DISSENT

BLACKMUN: the right to reproductive choice is entitled to the full protection afforded by this Court before
Webster (where 4 Justices showed willingness to overturn Roe). State restrictions on abortion violate a
woman’s right of privacy. Compelled continuation of a pregnancy infringes upon a woman’s right to bodily
integrity by imposing substantial physical intrusions and significant risks of physical harm. If restricting right
to terminate, the State is depriving a woman’s right to make her own decision about reproduction & family
planning- critical life choices that US SC long has deemed central to the right of privacy.
- Restrictions implicate constitutional guarantees of gender equality by forcing a woman to accept the
natural status and incidents of motherhood – a conception of women’s role that has triggered the
protection of the EPC. Limitations on the right of privacy are permissibly only if they survive ‘strict’
constitutional scrutiny. Strict scrutiny of state limitations on reproductive choice still offers the most
secure protection of the woman’s right to maker her own reproductive decisions, free from state
coercion.
- The factual premises of the trimester framework have not been undermined and is far more
adminsistratable and far less manipulative than the ‘undue burden’ standard – trimester framework
should remain in tact

REHNQUIST: this is a wholesale retreat from the substances of Roe – Roe was wrongly decided, and it can
and should be overruled consistent with our traditional approach to stare decisis in constitutional cases.
- Read abortion as fundamental too broadly – this involves the purposeful termination of a potential life
unlike marriage – it therefore must ‘be recognized as sui generis, different in kind from the others that
the Court has protected under the rubric of personal or family privacy and autonomy’ – one cannot
ignore the fact that a woman is not isolated in her pregnancy, and that the decision to abort necessarily
involves the destruction of a fetus.
- Historical traditions and American people do not support the view that the right to terminate pregnancy
is fundamental
- At the time of adoption of the 14th AM, statutory prohibitions or restrictions on abortion were
commonplace.
Court in ROE was mistaken when it classified a woman’s decision to terminate her pregnancy as a
‘fundamental right’ that can be abridged only in a manner which withstands strict scrutiny

SCALIA: the States may permit abortion on demand, but the Constitution does not require it. A states choice
between 2 positions on which reasonable people can disagree is constitutional even when it intrudes upon
‘liberty’ in the absolute sense of the term. The issue is whether a woman’s right to abort her child is protected
by the Constitution – it is not because (1) the Constitution says absolutely nothing about abortion, and (2) the
longstanding traditions of American society have permitted it to be legally proscribed. Roe’s mandate for
abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future,
and required the entire issue to be resolved uniformly at the national level. Roe famed into lie an issue that
has inflamed our national politics and has obscured with its smoke the selection of Justices to this Court.

History examined at what level of generality?

 Scalia note 6 (Michael H. v. Gerald D. - 1989) 
 They were both committing adultery and had a child
  A child borne during marriage is legally the child of the husband – the state legislature doesn’t care
who the biological father is
 Michael H. is the biological father of this child, and Gerald D. is the legal father of this child
 Michael wanted visitation rights, but the court rejected this, so it went up to the Supreme Court
 He is claiming a SDP of visitation rights
 Scalia: “We refer to the most specific level at which a relevant tradition protecting, or denying protection
to, the asserted right can be identified. If there were no societal tradition regarding the rights of the
natural father of a child adulterously conceived, we would have to consult, and reason from, the
traditions regarding natural fathers in general. BUT there is such a more specific tradition, and it
unqualifiedly denies protection to such a parent”
o When the DPC was adopted – either one – Scalia is telling us that natural parents had no rights;
only legal parents did – that is our tradition and history, and we are bound to it, b/c after all that
is what the 5th and 14th Am’s meant at the time of their creation; we are bound by what the
document meant at the time it was ratified, and at that time natural parents have no right – at the
time there was really no alternative (1791 and 1868) – but does it make sense to establish that
where DNA evidence is available in our modern times?
o When you fix the legal rights at some historical period, then you are denying any progress either
in society or technology – it all becomes completely irrelevant (i.e. the airforce would be
unconstitutional)
 This is the dispute: O’Connor is looking to history and traditions for more basic principles; Scalia is
looking for specific time periods  at what level of generality do you define the right? – see how this will
have a dispositive impact when we get to gay rights cases
 SCALIA WINS HERE – scholarly reaction is bad; and it influences Kennedy in the Casey Case – Majority is
backing away from FOODNOTE 6 (short lived on the court
 O’Connor: Right to choose is an attribute of ‘personhood”- traditions in a much broader perspective (and a
hint of equal protection issues; i.e. the issues burden mostly women)

STENBERG v. CARHART (US SC – 2000; Pg. 205)

FACTS: An abortion provider filed suit against the State of NB seeking to have a law, which proscribed partial
birth abortions, declared unconstitutional

RULE: partial-birth abortion statutes that have the effect of placing a substantial obstacle in the path of a
woman seeking an abortion are unconstitutional
- The state may promote but not endanger a woman’s health when it regulates the methods of abortion;
here the statute lacks the requisite exception ‘for the preservation of the health of the mother’
- The statute was unconstitutional because it did not provide an exception for medical emergency and it
not only banned a rare procedure but also the most common procedure used imposing an undue burden
on a woman’s ability to obtain a pre-viability abortion

HELD: Statute doesn’t adhere to Casey’s framework b/c there is no medical exception for the mother so it is
unconstitutional

GONZALES v. CARHART (US SC – 2007; PG. 208)

FACTS: In 2003, Congress passed and the President signed the Partial-Birth Abortion Ban Act. The
controversial concept of partial-birth abortion is defined in the Act as any abortion in which the death of the
fetus occurs when "the entire fetal head [...] or [...] any part of the fetal trunk past the navel is outside the body
of the mother." Dr. Leroy Carhart and other physicians who perform late-term abortions sued to stop the Act
from going into effect. The plaintiffs argued that the Act could apply to a more common abortion procedure
known as "D&E;" ("dilation and evacuation"), as well as to the less common "intact D&E;," sometimes called
D&X; ("dilation and extraction"). With this application the Act would ban most late-term abortions and thus
be an unconstitutional "undue burden" on the right to an abortion, as defined by the Supreme Court
in Planned Parenthood v. Casey. The plaintiffs also argued that the Act's lack of an exception for abortions
necessary to protect the health of the mother rendered it unconstitutional under the Supreme Court's
decision in Stenberg v. Carhart, regardless of Congress's finding in the Act that partial-birth abortions are
never medically necessary.

A federal District Court agreed and ruled the Act unconstitutional on both grounds. The government appealed
to the Court of Appeals for the Eighth Circuit. The government argued that the Act only bans a narrow
category of abortion procedures, and that a health exception is not required when Congress determines that a
banned abortion procedure is never necessary for the health of the mother. The Eighth Circuit disagreed and
upheld the District Court, ruling that a health exception is required for all bans on abortion procedures when
"substantial medical authority" supports the necessity of the procedure. The Circuit Court ruled that the
ongoing disagreement among medical experts over the necessity of intact D&E; abortions was sufficient to
establish that the Act was unconstitutional without a health exception. The Circuit Court did not reach the
question of whether the Act was so broad as to qualify as an unconstitutional "undue burden."

ISSUE:  Is the Partial-Birth Abortion Ban Act of 2003 an unconstitutional violation of personal liberty
protected by the Fifth Amendment because the Act lacks an exception for partial-birth abortions necessary to
protect the health of the mother?

DECISION:  No. The Court ruled by a 5-4 vote that Congress's ban on partial-birth abortion was not
unconstitutionally vague and did not impose an undue burden on the right to an abortion. Justice Anthony
Kennedy wrote the opinion for the majority. The Court held that, under the most reasonable interpretation,
the Act applies only to the intact D&E; method (also known as "partial-birth abortion") and not to the more
common D&E; procedure. The Act's application was limited by provisions that restrict enforcement to cases
where the physician intends to perform an intact D&E; and delivers the still-living fetus past specific
"anatomical landmarks." Because the majority found that the Act applies only to a specific method of
abortion, it held that the ban was not unconstitutionally vague, overbroad, or an undue burden on the
decision to obtain an abortion. The Court also held that Congress, after finding intact D&E; never to be
medically necessary, could validly omit a health exception from the ban, even when "some part of the medical
community" considers the procedure necessary. To require the exception whenever "medical uncertainty"
exists would be "too exacting a standard to impose on the legislative power [...] to regulate the medical
profession." The Court left open the possibility that an as-applied challenge could be brought against the Act if
it were ever applied in a situation in which an intact D&E; was necessary to preserve a woman's health.
Justice Ginsburg's dissent disputed the majority's claim that the opinion was consistent with
the Casey and Stenberg precedents and said "The Court's hostility to the right Roe and Casey secured is not
concealed."

 Federal “partial-birth” abortion law

o Congressional findings:
 Dilation & extraction is gruesome and inhumane
 D&X is never medically necessary (true or not true; it is a scientific and medical
statement – Congress is making a medical judgment about the necessity of a particular
procedure – could be right or wrong that there are always or never all alternatives)
 Is Congress entitled to give weight to one set of testimony and not another? YES
– it does it all the time – they conduct hearings, and bring in experts and
witness, and never will everyone be in sync, always disagreements – and what
you want legislators to do is to put their judgment on this … so Congress is
making findings by agreeing with some experts and not others
 Non-viable fetus – to say it is inhuman; is that saying a non-viable fetus is human; and isn’t this contrary
to roe i.e. not yet a life without any rights – worried about this particular finding, and whether it is
elevating the status of the fetus in a way that was rejected in Roe
 If it is medically necessary in some cases- then it would be a flat out deprivation of a right
 Trying to decide if this law is an undue burden or not – because once we have decided we know what
standard of review to apply
 Whether this is an undue burden or not depends on the factual finding –
 o In those cases where it IS The only alternative; and it is prohibited – then this law stands in
the way of the right and you would subject the law to strict scrutiny ; if it is never
medically necessary (as congress found) then it is never an undo burden
 Standard of Review that the Court is applying in determining whether or not this is an undue burden: in
deciding wheteh or not to defer to Congress – the court is deferring to Congress
 This seems to be an abdication of a judicial role – they are keeping the shell of the fundamental right – but
in applying the undue burden step, they are deferring to the very body who they are asking to defer – a
clever way to undue the fundamental right (and somewhat pernicious – they are doing it through the
back way instead of overtly)
 SCt rejects facial challenge
o Does not impose “undue burden”
 UB analysis determines std of review (RB vs. SS).
 Accepts congress’ version of facts, although disputed
 Must leave a “margin for legislative error”
o Ct. defers to congress in deciding whether to defer to congress
 The most troublesome aspect of the opinion.
 Invalid on its face, or as-applied
o Facial – law incapable of valid application
o As applied – law unconst’l on these facts
 Next in the abortion debate
o Court left no doubt that it was leaning toward the pro-life position
 Physicians referred to as “abortion doctors”
 Fetus referred to as “unborn child” and “baby”
 Court accepts Congress’ moral imperative as legitimate interest
 Roe is merely “assumed” valid, for the moment
o No more facial cases
 UB won’t be found in facial case unless a widespread health risk is shown
 Individual health risk on a case-by-case basis

SEXUAL ORIENTATION

The Odious Sin of Homosexuality

 Leviticus 20:13 [Old Testament & Torah]:
o “If a man also lie with mankind, as he lieth with a woman, both of them have committed an
abomination: they shall surely be put to death; their blood shall be upon them.”
 Genesis 13:13 Sodom & Gomorrah destroyed by God for their inhabitants’ sin, incl. sodomy
o Pope Gregory IX (1143-1241) decreed that homosexuals should be burned alive
o St Thomas Aquinas, Summa Theologiae (1274) (homosexuality was a “sin against nature”)
 Codex Theodosianus (Theodosian Code) 438
“Iidem aaa. orientio vicario urbis romae. omnes, quibus flagitii usus est, virile corpus muliebriter
constitutum alieni sexus damnare patientia (nihil enim discretum videntur habere cum feminis),
huius modi scelus spectante populo flammis vindicibus expiabunt. pp. in foro traiani viii. id. aug.,
valentin. a. iv. et neoterio coss. haec lex interpretatione non indiget” Theod. 9.7.3
 Codex Justinianeus (Justinian Code)
 Long Condemned in Western Societies
o incl. Nazi germany which purged the gay population

Bowers v. Hardwick (1986)

 Georgia law prohibiting sodomy
 Upholds a GA law that prohibits both heterosexual and homosexual sodomy, but there
was never a prosecution of heterosexual sodomy
 Hardwick arrested in his bedroom and charged
o Both heterosexual and homosexual
o No prosecutions of straight couples
 Claim (as characterized by court):
o “Whether the federal constitution confers a fundamental right upon homosexuals to engage in
sodomy”
 No interprivist method that we have talked about are going to give us an
affirmative answer to this – they are all going to say no – to ask the question is
to answer it
o Is this the best way to state the claim?
 Is homosexuality nothing more than oral & anal sex?
 Does White evince a misunderstanding of the injury?

Lawrence v. Texas (2003)

 Kennedy (majority)
o Bowers “failed to appreciate the extent of the liberty interest”
 Sodomoy laws do more than “prohibit a particular sexual act;” they “control a personal
relationship”
 SAME FACTS – same thing happened to Lawrence as did Hardwick – b ut
the way that the Court frames the question here is very different…
 Whether the fundamental right of Liberty includes the right of a person to
choose their own intimate relationship
o Recharacterization of the right involved:
 “Liberty of persons to chose their own intimate personal relationships”
 Has Kennedy adopted John Stuart Mill’s On Liberty?

 Compare how the “right” is characterized:

Bowers Lawrence

Fundamental right of Liberty of persons to chose own

homosexuals to engage in intimate personal relationships
sodomy

 What do the different characterizations tell us about the Court’s methodology & result?
  Which right are we asking the Court to recognize? FIRST, you have to and know what right it is you
are asking about – how do you frame the right in the first place, and why is one way better than the
other?
 The framing of the right may turn out to be THE CRITICAL ISSUE; if it is framed to narrowly, you will
never find it (never in Scalia’s footnote 6) and if framed to broadly then you may be on a slippery
path, some things may fall into this that you don’t want to protect (i.e. bestiality)
US SC in Loving had no problem finding that marriage is a fundamental right; and not a member of the US SC
would not go back on saying that marriage is a fundamental right, but does that include same sex marriage?
But when they wrote it they weren’t thinking about same sex marriage, we should have said that heterosexual
fundamental right – how do you distinguish between interracial and homosexual marriage as being a
fundamental right—how do you get off the road to same sex marriage?
 No matter how you frame the right it may be to broad or too narrow
 (SKIP BOWERS SLIDES)

Lawrence v. Texas (2003): look at our traditions and history in an evolving way, not in a fixed way
- Kennedy says substantive due process right; some parts liberty
 Evolving notions of “liberty” and “privacy”( (to decide what people say about homosexual relationships)
… KENNEDY:
o What legal commentators say (eg, ALI, law rev.)
o What other states say (decriminalization trend)
o What other nations say (ECHR)
o Trend of precedent (eg, Casey, Romer)
o Privacy (autonomy) at a greater level of generality
 includes “one’s own concept of existence, of meaning, of the universe, and of the mystery
of human life”
 “As the constitution endures, persons in every generation can invoke its principles in
their own search for greater freedom”
 Why doesn’t stare decisis work here?
 Overturning Bowers
o Why not faithful to stare decisis as in Casey?
 Should precedent establishing a right be more enduring than precedent rejecting the
right?
o Kennedy’s factors for overturning precedent:
 foundations have been eroded by other cases
 subject to substantial/continuing criticism
 failed to induce individual or social reliance
 Gays structured their relationships despite BOWERS not because of BOWERS –
it did not lead to any cultural dependency
 These factors are more relevant to an organic view of the constitution than a static one
o Kennedy’s factors are living Constitution factors (dynamic)
 What Standard of Review used by Kennedy?
o See last line: “The Texas statute furthers no legitimate state interest …”
 Not talking about compelling interest, but legitimate interest—THIS IS THE LANGUAGE
OF RATIONAL BASIS REVIEW – Kennedy is using this language BUT HE IS DOING
SOMETHING ELSE – HE IS DOING STRICT SCRUTINY – he doesn’t come out and say it is a
fundamental right even though he infers it in the opinion – he is independently
scrutinizing whether the state interest is a valid one
 May not be strict scrutiny in name, but it is HIGHTENED scrutiny in effect – the court is
moving away from dichotomous world, and is finding moiré of a fluid standard of
review, which may lay somewhere in between rational basis and strict scrutiny – but no
where in the opinion does J. Kennedy use the language of strict scrutiny
 Entering an ERA, Kennedy is a proponent: uses the language of rational basis and
doesn’t defer “meaningful rational basis” b/c the Court is inquiring as to whether the
state does have a legitimate interest or not
 Rational Basis with Bite
o Language of RB, but
o Close scrutiny by the Court
o More flexible …. but more manipulable
o Kennedy seems to favor this standard

SAME SEX MARRIAGE

 Goodrich v. Mass (SJC, 2003)
o Marriage is fundamental right – state const.
 In re Marriage Cases (Cal, 2008)
o Fund. right, gays are suspect class (state const)
 Proposition 8 (adding Art. I, § 7.5)
 Strauss v. Horton (Cal, 2009)
o Majority can eliminate EP rights for minority
 Perry v. Schwarzenegger (ND Cal, 2010)
o Prop. 8 violates US const’n DP & EP clauses
o Standing issue certified to Cal. Supreme Court