The author looks specifically at the immutability element of the test for suspect class protections under the Fourteenth Amendment, and how it might apply to homosexuals. Is sexual orientation an “immutable” trait, at least within the sense required by contemporary constitutional analysis? Balog believes the answer is Yes, and therefore, “assuming homosexuals are able to meet the remaining three Frontiero factors [history of purposeful discrimination, object of deep-seated prejudice, and politically powerless minority], homosexuality should be classified as a suspect classification and receive heightened review.”

Baxter discusses lesbians and gay men as a suspect or quasi-suspect class for equal protection analysis. Reviewing how the criterion of political powerlessness has been applied to women and racial minorities, she concludes that were this analysis applied “evenhandedly by measuring the political power of homosexuals in the same manner it has measured the political power of other groups, the Court may find that laws classifying based on sexual orientation are subject to heightened or strict scrutiny.”

This eminently readable article articulates the conflict of laws issues raised by same-sex marriage. Included are discussions of the obligations of states to respect other states' laws or judgments, and whether DOMA violates the Full Faith and Credit Clause.

In this article Dent adds to his established list of anti-gay writings. Beginning with claims that “most people have an innate distaste for homosexuality” and that “heterosexuality can be considered intrinsically better,” Dent allows that gay men and lesbians “should be free from harassment and physical abuse,” and that in at least “some cases” they should perhaps not be the object of discrimination. Those familiar with Dent’s work will find few surprises here: Gays unqualified bad, anti-gay religion unqualified good.

This very brief (ten pages) government study provides an overview of the Court’s opinion in Lawrence v. Texas [539 U.S. 558 (2003)] and considers its impact on future suits about gay rights generally and same-sex marriage specifically. More extensive treatment of the latter topic can be found in the CRS report Same-Sex Marriages: Legal Issues (Alison M. Smith, last updated July 17, 2006, available at www.opencrs.com/document/RL31994/).

Grodin—a former Associate Justice of the California Supreme Court—argues that “state courts bear responsibility for developing a state constitutional jurisprudence which does not simply follow, in blind lock-step, the most recent pronouncements of the United States Supreme Court with respect to similar or even identically worded provisions, but which instead make a serious attempt to ascribe meaning to the provisions of the respective state constitutions in a principled but independent way.” He then applies this perspective to the problem of same-sex marriage and finds that the incoherency of rationality review provides an opportunity for “creative doctrinal development at the state level.”

The Marriage Protection Act of 2004 (MPA), or House Bill 3313, would strip the federal courts of jurisdiction over same-sex marriage cases. This article provides some history of the MPA. It examines the federal courts’ powers of judicial review, and Congress’s power over the courts. It concludes that attempts to curtail judicial review through the MPA would be unconstitutional. Equal protection, full faith and credit, and due process analyses are all discussed.

Written from the legal perspective of the Anglo-Commonwealth jurisdictions, the author studies the argument that describing someone as gay or lesbian alone opens the speaker to defamation claims. Does “such an imputation tend to lower the reputation of a person in the estimation of ‘right-thinking’ members of society”? He finds that generally “there remains a reluctance on the part of the courts to definitively rule that the right-thinking person is now indifferent to imputations of gayness.”

This author examines some issues that arise under various state “defense of marriage” laws. He identifies a number of issues that aren’t generally covered by those laws, such as persons migrating to the state, individuals attempting to avoid obligations incurred in other states, and litigation related to children of same-sex marriages who are now residing in the state. A number of attempts to deal with those situations, either by denying “contractual rights” to same-sex couples, by refusing to enforce judgments from other states related to same-sex unions, or by “blanket nonrecognition,” are most likely unconstitutional, because they either violate the Equal Protection or Full Faith and Credit clauses of the U.S. Constitution.

Lucas advocates in this extremely brief opinion piece from a symposium titled “Sex for Sale” that mainstream gay rights advocates avoid the one trait that uniquely distinguishes homosexuals from straight people: sex. They are thus inclined to adopt the majority interpretation of pornography as degrading to women (among other bad things). Contradicting this negative portrayal of pornography, Lucas suggests that gay male porn can serve functions that are useful to the gay community and even to wider society. This statement may be unique in the legal literature: Although possessed of a law degree from Russia, Lucas’ authority to speak on this subject flows from his own position as a successful gay porn star and entrepreneur.

This essay considers the constitutional issues raised by the establishment of institutions like the Harvey Milk High School in New York City. The school was established in 1985 to “target students that are being harassed in their community schools because of their actual or perceived sexual orientation or gender identity.” Because it provides a benefit to the exclusion of other, similarly bullied students, it might be vulnerable to claims that its existence violates the Equal Protection Clause of the 14th Amendment. For years gay rights advocates have been pushing to have homosexuality included among the suspect classes meriting heightened scrutiny, thus practically ensuring that laws excluding GLBT persons would fall. The author, however, believes that in the current climate of incremental social changes, “rational basis review may better serve the goals of gay rights advocates than would the application of heightened scrutiny [because] benign programs meant to remedy discrimination are far less likely to survive strict scrutiny than rational basis review.”

Massachusetts General Law chapter 207, section 11, prohibits the issuance of marriage licenses to non-resident couples who reside in states where their marriages would be void. This article analyzes this “marriage evasion statute” as it applies to same-sex couples. It concludes that the statue violates the Privileges and Immunities Clause of the United States Constitution.

The author begins by considering the appropriate degree of deference the U.S. Supreme Court should use when invalidating a piece of legislation, and determines that they should use a “not unreasonable” standard in their review. He then reviews the key components of the 14th Amendment (due process, equal protection, and privileges and immunities), and concludes that a law will run afoul of the 14th Amendment if it is based on a “demeaning view” of a group of people. While he concludes that most anti-same-sex marriage laws are based on a demeaning view of gay men and lesbians, and thus technically unconstitutional, he feels that the Supreme Court should perhaps proceed cautiously in invalidating those laws in deference to the legislative process, and because invalidation could provoke a backlash that prompts an amendment to the Constitution.

The author begins with a brief discussion of the federal Defense of Marriage Act, and the Full Faith and Credit Clause of the U.S. Constitution, and finds that neither is dispositive on the issue of whether a same-sex marriage in one state must be recognized in another. He then analyzes the New York state case In re May’s Estate [148 N.E.2d 4 (N.Y. 1953)] to see whether a choice-of-law argument might help proponents of same-sex marriage to advance their claims. While the decision in May’s Estate would seem to do so, the author finds the case to have been improperly decided. He concludes, however, that the Equal Protection, Due Process, and Establishment Clauses of the U.S. Constitution would require a state to recognize same-sex marriages performed in another state.

A short student note equating homosexuality with bestiality and polygamy as part of an argument that antidiscrimination laws will inevitably undermine the First Amendment free speech clauses. Concluding that “considering almost any group a discriminated class is dangerous,” the author draws heavily upon foreign hate speech enactments from which she analogizes what negative outcomes could arise within the U.S. jurisdiction should gay men and lesbians achieve basic protections under the law.

Strasser intends this article as a corrective to those who interpret Lawrence v. Texas [539 U.S. 558 (2003)] as a simple incorporation of John Stuart Mill’s “harm principle.” ON LIBERTY’s harm principle states that “the only conduct for which an individual is appropriately subject to sanction by either the state or society is conduct which is ‘other-affecting;’ that which only affects himself is not appropriately subject to external punishment.” Strasser argues that viewing Lawrence as embodying this principle follows from both a “watered-down” understanding of the harm principle itself, and a narrow reading of Lawrence to justify the claim that the decision “incorporates this modified version.”
“It is inappropriate to characterize Lawrence as a straightforward incorporation of the harm principle both because in some respects it does more than the harm principle [by assigning positive value to GLBT relationships], and because in other respects it does less than the harm principle [by protecting fewer liberties than the harm principle requires, such as prostitution].”
The erroneous reduction of Lawrence to the harm principle reinforces but does not wholly account for subsequent decisions (Lofton v. Secretary of Florida Department of Children and Family Services [358 F.3d 804 (11th Cir. 2004)], L.A.M. v. B.M. [906 So.2d 942 (Ala. 2004)], Kansas v. Limon[83 P.3d 229 (Kan. Ct. App. 2004)]) that have disadvantaged GLBT persons “not because of a misreading of Lawrence as simply an incorporation of Mill’s harm principle into 14th Amendment jurisprudence, but because the courts have been making more serious and obvious mistakes in their interpretation of local and constitutional law.”

This writer maps out the tensions inherent within the First Amendment’s protection of antigay hate speech, on the one hand, and, on the other of the expressive speech of LGBT persons themselves. He opines that these two threads are not independent: hate speech often occurs more frequently in response to expressive speech. The article concludes with the “normative proposal that expanded protection of LGBT expressive speech should lead to increased restrictions of homophobic hate speech.”