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MODUS VIVENDI, THE NEW UNDUE BURDEN OF THE FEDERAL EQUAL PROTECTION CLAUSE By: Nicholas A. Yanchar, J.D., LL.Mi INTRODUCTION Our obligation is to define the liberty of all, not to mandate our own moral code . . . [a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.1 This is one of the most powerful statements when it comes to human existence. But this statement did not come from a book or a short story; it came from Supreme Court Justice Sandra Day O’Connor in her majority opinion of Planned Parenthood v. Casey. 2 Depressingly, moral views of the many have been allowed to overrule the liberties of the few and courts have been unwilling to stand against those wronged by the sword of injustice. Gays3 have been the subject of disdain and hate since the late 1880’s, and to date not much has changed.4 Advocates of anti-gay rhetoric in America have been successful in restricting and combating against the liberties of human decency that the gay community deserves. Currently under the Fourteenth Amendment’s Equal Protection Clause of the United States Constitution, sexual orientation is a non-Suspect classification granting it only Rational Basis review. This is the lowest standard that could be offered under Equal                                                                                                                 1 Planned Parenthood v. Casey, 505 U.S. 833, 850-851 (1992). 2 Id. 3 Hereinafter, “gay” or “gays” refers primarily to gay men due to the historical stance against male homosexuality, but lesbian women are included in this definition where appropriate, or unless otherwise specified. 4 See also, General Article, Sexual Orientation and the Law: A Selective Bibliography on Homosexuality and the Law, 1969-1993, 86 Law Libr. J. 1 (1994).  
  2   Protection violations. This standard is insufficient to rectify intentional and purposeful discrimination that has been enacted by the government against the gay community. Injustices against this community have been aggressive and highly intrusive throughout history. Besides legal restrictions, medical experiments—either voluntary or involuntary—such as electroshock therapy and brain surgery were conducted on gay men.5 No matter how hard people have tried to erase gays from the country however, they have always persevered. Eventually, the gay community fought back leading America to come to terms with homosexuality.6 This revolution lead America to current day where homosexuality is more rooted in society and those who are gay have come out of the closet proclaiming equality. However, equality is only a pipe dream when the Equal Protection Clause offers minimal protections from state intrusion. One-hundred and thirty-three years7 after the first anti-gay law was enacted in America and forty-three years8 after the revolt by the gay community for equality, the United States Constitution has still failed to offer protections to this worthy class. This article has one focus it seeks to advocate: higher protections for discrimination based on sexual orientation. This author’s argument is adopting a new standard of review under Equal Protection altogether, deemed the Modus Vivendi Nexus Standard, in consideration of court reluctance to allow higher protections under a current standard for the gay community.                                                                                                                 5 William N. Eskridge, Jr., Gaylaw 81 (Harvard Univ. Press eds., 1999). 6 Symposium, Stonewall at 25, 29 Harv. C.R.-C.L. L. Rev. 277 (1993). 7 Eskridge, supra note 5, at 2. 8 Symposium, supra note 6, at 2.  
  3   The Modus Vivendi Nexus Standard requires showing a nexus between an important governmental objective to the statute or law at issue, and if such nexus is shown, that the statute or law is narrowly tailored to achieve that goal without violating one’s right to practicing their sexual orientation. Throughout this article, there will be two main parts with subparts. The first part will show the historical discrimination by America, while the second part will address the legal history and analysis, including the proposal for the new Modus Vivendi Nexus Standard. The first part has three sub-parts. Subpart one presents the idea of disgust in politics and how that played a roll in sodomy laws, gender roles, and pre- and post-World War I politics and constitutional restraints of expression. The second subpart presents the transformation of disgust to immorality resulting in a Kulturkampf, including a comparison of American and Nazi-Germany laws. In addition, this author will address the evolution of the medical community’s opinion on homosexuality and how that impacted American law. The third subpart will analyze the revolt of the homosexual community from 1969 to present. Specifically, this part will address the gay rights movement and how America took defense against the arguments for equality. The second main part will consist of two subparts. Subpart one will analyze the historical context and evolution of the Equal Protection Clause. Within this subpart there will be an analysis of its classifications, standards of review, importance and unimportance of fundamental rights in Equal Protection analysis, and deconstruction of the requirements for the different classifications.
  4   The second subpart will introduce the Modus Vivendi Nexus Standard. Contained therein will be the meaning of the standard, discussion of fundamental rights in relation to sexual orientation, deconstruction of the proposed Standard, and counter arguments. Within the counter arguments, there will be proposed arguments discrediting the new Standard and responses to those attacks. Lastly, an application of the Standard used in two case examples. HISTORY AND BACKGROUND It is common knowledge that gays and lesbians are not treated equally with their heterosexual counterparts. Unlike heterosexuality, the gay community has been subjected to hateful and demoralizing actions by individuals, local and state governments, and the federal government.9 As a result gays have lived in fear of being who they are due to the ramifications and lack of protections from the constitution, which theoretically, was created to prevent those injustices.10 One possible explanation has been presented how these injustices have been allowed to occur without redress: the idea of disgust. Many strategies and arguments in politics have unconsciously used the idea of disgust in anti-gay laws.11 A deeper analysis produces visualizations like “feces, other bodily fluids, corpses, and animals or insects that have related properties (slimy, smelly, oozy).”12 Specifically, projective disgust—projection of disgust properties onto a group or individual—is act of a group or person linking another group or person based on one of                                                                                                                 9 This whole article addresses the statements made within this sentence. 10 Alba Conte, Sexual Orientation and Legal Rights, ix (John Wiley & Sons, Inc. eds., Vol. 1 1998). 11 Martha C. Nussbaum, From Disgust to Humanity 8 (Oxford Univ. Press eds, 2010). 12 Id. at 14.  
  5   the principles outlined above.13 Historical examples include the Nazi opinions of Jews as slimy or similar to maggots, although we know that is untrue, it worked for Nazi Germany.14 Thusly, it is not shocking that gays fall into the idea of disgust for mainstream society.15 In gay-male sex visualizations of “contamination-by-penetration,” that is, semen to feces is produced.16 Arguably heterosexual sex is no better besides the strong connection to mortality and reproduction.17 One key difference however between gay and heterosexual sex is that in gay sex a male receives the bodily fluids (semen) while in heterosexual sex the woman is the one who receives those fluids.18 These graphic visualizations have a purpose: the idea of disgust has been forced upon subordinate groups as a way of stigmatizing them as sick and inferior.19 However, disgust provides no valid reason for compromising equalities that are constitutionally required.20 Nonetheless, this has not stopped society from condemnation of gays to second class-citizens. The following history accounts of how disgust was projected in America’s perception on gays. I. Immorality to Regulation of Sexual Intimacy. In 1881, the post-Civil War state of New York passed a bill criminalizing sodomy but not specifying homosexuals as the intended class.21 As a result of these kinds of laws enacted between the 1880’s and 1900’s, male subcultures were born in New York City,                                                                                                                 13 Id. at 16. 14 Id. 15 Id. at 18. 16 Id. at 18-19. 17 Id. at 19. 18 Id. 19 Id. at 20. 20 Id. at 21.   21 Eskridge, supra note 5, at 2, 19.
  6   San Francisco, St. Louis, Philadelphia, Chicago, Boston, New Orleans, and Washington D.C. By the early 1900’s, Milwaukee, Denver, Louisville, and Portland (Oregon) were considered as “homosexual capitals.”22 During this period, American doctors considered the cause of this gender-related detour from mainstream society concluding that this type of gender inversion was a dangerous sickness.23 These conclusions in conjuncture with media influence resulted in defensive action in all states.24 These included anti-gay societies, civilians assisting police in arrests of those engaged in sodomy, gender-role inversion of prostitutes and theatre, and gay establishments.25 Until 1921, “social disgust and state action” played out at the municipal, state, and federal levels aiming at suppression of gender roles and sexual variations.26 Specifically, states responded by enforcing felony sodomy statutes with neutral application to male and females alike. A shift from concern of homosexuality to a higher societal concern about same- sex eroticism occurred due to the Newport investigation in March 1919, contemporaneous with World War I.27 This investigation concerned sailors who cross- dressed, were described as effeminate, solicited and performed oral sex with other men, and were deemed “morally degenerated.”28 By Court Marshall, they were dishonorably discharged and jailed. In response, Congress and the War Department quietly passed an ex-post facto Articles of War criminalizing the same acts these sailors were imprisoned                                                                                                                 22 Id. at 21. 23 Id. at 22. 24 Id. at 23. 25 Id. at 23-24. 26 Id. at 24.   27 Id. at 36. 28 Id. (citing 1919 Court of Inquiry Transcript, 268-269, which can be found in National Archives, Record Group 125, Records of Proceedings of Courts of Inquiry etc., No. 10821-1).
  7   for, specifying that the armed forces could forcibly remove or exclude “all suspected perverts.”29 Thus, this was the military’s first regulation with legal support screening out gay male applicants who wanted to enlist.30 During the era of World War I, 31 psychoanalyst Sigmund Freud published his opinion on sexual orientation presenting a different perspective.32 He believed that sexual orientation was “a crucial part of a person’s identity, distinct from biological sex or gender character.”33 He argued that all human beings were innately bisexual, and in his opinion, declared homosexuality more culturally learned then biological.34 When discussing possible “conversion therapies,” he argued they were unrealistic by comparing the idea that you cannot convert a homosexual to heterosexual with any more ease as you could doing the opposite.35 His theory, along with a society going through a sexual transformation with gender roles and sexuality, made society uncomfortable causing reactions. One example of a reaction happened in an Ohio case where a judge deemed homosexuals “sexual perverts [who] were ferocious animals who engaged in a degenerate sexual commerce with little boys or little girls.”36 This decision became the groundwork for a state like Ohio to create state interests in controlling and punishing the supposed                                                                                                                 29 Id. at 36-37. 30 Id. at 37. 31 Actually beginning in 1910, but influential highly in World War I era. 32 Id. at 38. (citing Sigmund Freud, Three Essays on Sexuality (1905) and The Psychogenesis of a Case of Homosexuality in a Woman (1920)). 33 Id. at 39. 34 Kenji Yoshino, Covering 36 (Random House, eds., 1st ed. 2006).   35 Id. 36 Barnett v. State, 135 N.E. 647, 649 (Ohio 1922).
  8   psychopathic homosexual, drive any expression of it underground, and protect the public.37 Post World War I had a massive influx of gay subculture and the government worked harder on publically suppressing it.38 In order for the state to curtail youth from being attracted to this subculture, it restricted positive role models as a deterrent.39 The government suppressed gay association by police departments being made aware of popular gay hangouts and organizing teams posing as decoys to attract solicitations, raiding gay bars, baths, and other spaces.40 Revocation of a liquor license as a method of control by the state, requiring “good character” and preventing the premises from being a “resort of disreputable persons.”41 If a violation occurred, their liquor license would be suspended or revoked.42 Books with homosexual themes or conduct were censored and removed from bookshelves. However, uncensored literary works depicting homophobia and work of sexologists were not censored.43 In filmography, censorship was effortlessly used on homosexual depictions by a Supreme Court exemption of movies from First Amendment protections.44 Thus, Hollywood adopted the Production Code in 1930 preventing any mention of                                                                                                                 37 Yoshino, supra note 34, at 7, 45. 38 Eskridge, supra note 5, at 2, 43. 39 Id. at 44. 40 Id. (citing Allan Berube, The History of Gay Bathhouses in Policing Public Sex 187-220 (Dangerous Bedfellows, eds., 1996)).   41  Id.  at  45.  (citing  Chicago  Code,  1911,  §§ 1525-26, 1536).   42  Id.   43  Id.  at  46.   44  Id.  at  48.  
  9   homosexuality in movies or on Broadway, but could be replaced by “sissy” and “tomboy” instead.45 In 1940, America instituted the mandatory draft and the Newport event resurfaced. Except this time the military instituted a screening process that intrusively asked new recruits their sexual orientation upon enlisting, men and women46 alike.47 However when they asked women their orientation, it ended up beginning the next big homophobic investigation by the government since Newport. This time it happened at the Women’s Army Corps (hereinafter “W.A.C.”) training camp in the spring of 1944. Triggered by a letter from a mother suggesting that there were a bunch of sex maniacs and homosexuals at W.A.C., she specifically stated that one alleged “maniac” had molested her daughter.48 The time between the Newport and WAC investigations reflects the transition from the focus of “immorality” to the state wanting to regulate specific intimacy, regardless if it was consensual.49 This next time period started the recognition that social and intellectual developments strongly influenced law. 50 Those who realized they fell into this disfavored category internalized the shame and assumed a “mask,” remaining silent about their individuality and trying to correct the imbalance that supposedly occurred within them.51 The law supported this pressure by normalizing sex based on heterosexual                                                                                                                 45  Id.  at  48-­‐49.  See  also  William  N.  Eskridge,  Jr.,  Law  and  the  Construction  of  the  Closet:  American   Regulation  of  Same-­‐Sex  Intimacy,  1880-­‐1946,  82  Iowa  L.  Rev.  1007  (1997).   46  Originally,  women  were  never  asked  their  sexual  orientation  until  after  July  1944.  See  supra  note   32,  at  7.   47  Eskridge, supra note 5, at 2,  50.   48 Id. at 51. (citing Lieut. Col. Birge and Capt. Ruby Herman, Report to The Acting Inspector General, July 29, 1944 (available at the National Arhives, Record Group 159 [Office of Army Inspector General], File 333.9 [Third WAC Training Center])). 49 Id. 50 Id. at 52. 51 Id.
  10   procreation and giving power to those who wanted to control the homosexual.52 If a person would be strong-willed enough to protest against this, it fell on deaf ears since they had no legal remedy.53 Being forced underground, the gay culture mutated into a double-life conundrum: gay behind closed doors, and claiming to be heterosexually “normal” to the world. The law potentially is the literal cause of this mutation: one could attack gays without accountability by teaching that they were subhuman.54 In reality, gays had only two options: lie and commit to a never-ending masquerade of heterosexuality, or tell the truth and face ruin, jail, or asylum.55 II. Scalia’s Kulturkampf: Immorality to Sickness to Erasure. “The Court has mistaken a Kulturkampf for a fit of spite.”56 This was the first line in the dissent of Romer v. Evans57 by Justice Antonin Scalia. A Kulturkampf literally means “culture battle,” and this author will address this line in more detail below. However, the relevance at this point in historical evaluation is appropriate, as it is obvious that Justice Scalia did not believe such a culture war existed in that case—or ever. Conversely, quite the opposite is proven through the next few years of history creating the highest point of entanglement between disgust toward gays and an attempt at their extinction. World War II transformed the gender roles of America: sending women from the traditional kitchen-esque female duties to work, while the heterosexual men (or those                                                                                                                 52 Id. 53 Id. at 53. 54 Id. at 54. 55 Id. at 56.   56 Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting). 57 Id.
  11   “masked”) fought overseas. Sadly this was short-lived, as once the war was over relaxation of gender roles were diminished again forcing gays back underground—aka “the closet.”58 However, this posed a threat to many Americans comparable to the Red Scare. 59 As a result, America began forcibly removing gays from the closet: an American Kulterkampf. In 1947 Herbert Hoover, former FBI director, announced that the highest increasing crime was that of sex offending and that such people, comparable to animals, were allowed to roam freely in America.60 Of course it didn’t take long for the press to inflate this claim, which not only re-gassed the fires of the child-molestation-homosexual correlation, but targeted the group responsible: homosexuals.61 Thus, between 1946 and 1961 criminal prosecutions on that premise resulted in approximately one million gays being incarcerated for simple things such as consensual adult intercourse, dancing, kissing, or holding hands.62 In 1948 the nation’s capital passed its first sodomy law 63 with sentencing enhancements deeming all homosexuals as “sexual psychopaths.”64 In 1953, Congress changed the law to allow police to peer into the private lives.65 Naturally, states piggybacked enacting similar statutes themselves. This was when the flushing of the proverbial closet reached full swirl. Imploring the same tactics as pre-World War I, police again became highly intrusive into the private lives of gays. Spying on gays often meant spending hours perched above                                                                                                                 58 Eskridge, supra note 5, at 2, 59. 59 Referring to the idea of communist invasion after World War II. 60 Eskridge, supra note 5, at 2, 60. 61 Id.   62 Id. 63 D.C. Code § 22-3502, 62 Stat. 347 (1948). 64 Eskridge, supra note 5, at 2, 60-61, see also Id. at (b). 65 D.C. Code, supra note 63, at 11.
  12   public toilets, peeking into parked cars, and even following them and peering through their bedroom doors.66 The Kulturkampf rooted in disgust didn’t end here, but continued and while getting progressively worse. A. Nazi-Germany and Pre and Post-World War II on anti-homosexual regulation.67 In 1933, Adolf Hitler declared all homosexuals an enemy of the state as a threat to German youth, their morals, and reproduction.68 Congress enacted a similar statute 1950 but added national security risks to the list, which was reaffirmed by Eisenhower in 1953.69 In 1935, German sodomy law was expanded to include any sexual contact between two men, with higher penalties for sex with a minor, but never mentioned woman.70 In 1948, Congress adopted the same type of law with harsher penalties.71 In 1936, German criminal police established special units for detecting homosexuals and used raids to achieve group arrests; while by 1950 many states had similar squads in place and gay raids resulting in group arrests.72 In this same year—1936—the Reich Office for Combatting Homosexuality and Abortion was created as a clearinghouse for information about homosexuals; comparable to 1937 when the FBI collected similar information for dissemination to agencies and employers.73 In 1937, the Reich sentenced homosexual offenders to concentration camps and subjected them to medical experiments and treatments like castration. America’s                                                                                                                 66 Eskridge, supra note 5 at 2, 64. See, e.g. People v. Earl, 31 Cal. Rptr. 76 (Cal. Ct. App. 1963) [gay couple spied on by police peering through glass into motel room]. 67  This  in  no  way  is  to  minimize  the  horrific  and  grotesque  treatment  of  Jews  in  the  holocaust.   68 Id. at 80. 69 Id., citing Gunter Grau, eds., Hidden Holocaust? Gay and Lesbian Persecution in Germany, 1933-45.   70 Id. at 81. 71  Id.   72  Id.   73  Id.  
  13   equivalent was after 1946, by sentencing gays to hospitals or special wards and subjected them to the same as the Reich, but the more common American experiments were electrical and pharmacological shock treatments and lobotomies.74 From 1942 to 1944, Wehrmacht High Command issued guidelines regarding homosexuality in the armed forces, and America did the same during the same period. However, American post-war guidelines increased the penalties for those caught as homosexual in the armed forces that were higher penalties then Wehrmacht had.75 The similarities are disturbing, and while America never conducted execution of homosexuals simply for being labeled such, it did conduct experiments. Terminology presents one key difference between Nazi Germany and America’s treatment of gays: Nazi’s goal was genocide, while America’s was a Kulturkampf by attempting erasure.76 B. Scientific influence on anti-homosexual regulation. In 1948, Alfred Kinsey published his report77 on sexual behavior in the human male, followed by a similar report78 on sexual behavior in the human female in 1953.79 Regarding his report on the human male, he recognized the social significance of homosexuality is “considerably emphasized by the fact that both Jewish and Christian churches have considered this aspect of human sexuality to be abnormal and immoral.”80 He acknowledged that “[s]ocial custom[s] and . . . law are sometimes very severe in                                                                                                                 74  Id.   75  Id.  at  82.   76 Id. 77 Alfred Kinsey, et al., Homosexual Outlet in Sexual behavior in the Human Male 610 (1948) 78 Alfred Kinsey, et al., Homosexual Responses and Contacts in Sexual behavior in the Human Female 446 (1953) (I am not addressing this article here as there were no additional information that would support or attack this paper’s thesis.). 79 William Rubenstein, Lesbian, Gay Men and the Law 1 (New York New Press eds., 1st ed. 1993). 80 Id.
  14   penalizing one who is discovered to have had homosexual relations.”81 Punishments for being labeled gay in society caused him to analyze the aspect of homosexuality as a cause and effect hypothesis. He concluded that homosexuality was something imbedded deep in a person’s personality. He further acknowledged that humans forget that they are part of the animal kingdom and this required recognizing that having only two classifications for human males is an improper categorization. 82 This report played no role in the scientific community’s opinion however, as the religious and legal influences superseded his research. In 1952, the first Diagnostic Statistic and Mental Disorders Manual83 (hereinafter “DSM”) listed a number of diseases for diagnosis and treatment, and deemed homosexuality as a “psychopathology.”84 It was here where the legal and medical community’s almost seemed to merge, allowing “correction” therapies for homosexuality. Whether voluntary or involuntary, gays were legally powerless to protect themselves. Not surprisingly the legal and religious influence on DSM classifications worked its way into the case law in support for cases involving homosexuality. Such a case was Boutilier v. Immigration Services,85 a 6-3 decision, which deported a bisexual Canadian immigrant because homosexuality was deemed a “psychopathic personality.” This                                                                                                                 81 Id.   82 Kinsey, supra note 77, at 13. 83 See also, Donald H.J. Hermann, article, Legal Incorporation and Cinematic Reflections of Psychological Conceptions of Homosexuality,70 UMKC L. Rev. 495 (2002). (further discussion and analysis on the DSM beyond this article’s scope). 84 Yoshino, supra, note 43 at 7, 38. 85 Boutilier v. U.S., 387 U.S. 118 (1967).
  15   decision ignored the dissent’s argument86 using Kinsey’s report conveying that it was impossible to define a person as a homosexual.87 This classification stayed in the DSM until the second re-printing of the DSM-II88 in 1973 where homosexuality was downgraded from a mental disorder to a sexual variant only.89 In a position statement written by Robert L. Spitzer, who was involved in nomenclature and statistics of the DSM, stated that by not removing the variant of homosexuality as an illness would be “misused by some people outside of our profession who wish to deny civil rights to homosexuals.”90 However, he warned that changing the variant will not recognize, medically speaking, that homosexuality would be as normal as heterosexuality.91 Specifically, he criticized that if we maintained homosexuality as a disease then we “have to add . . . celibacy, revolutionary behavior, religious fanaticism, racism, vegetarianism, and male chauvinism.”92 In a follow up Psychiatry Journal written by Spitzer on DSM-II, he recognized it was “inconsistent for homosexuality to be singled out as a mental disorder merely because of negative societal attitudes.”93 He acknowledged that a common trait in homosexuals—as a possible counter-argument for inclusion in the DSM—was “subjective distress or . . . associated with generalized impairment in social effectiveness of functioning.”94 This was mitigated by the fact that “homosexuality is not associated with distress . . .                                                                                                                 86 Dissenters were Douglas, Brennan, and Fortas. 87 Id. at 125-135. 88 First edition printed in 1968. 89 Robert Spitzer, The Diagnostic Status of Homosexuality in DSM-III: A Reformation of the Issues, Am. J. Psychiatry 138:2 (1981).   90 Robert L. Spitzer, Homosexuality and Sexual Orientation Disturbance: Proposed Change in DSM-II, 6th Printing, page 44, 730008 American Psychiatric Assoc. (1973). (can be found at: http://www.torahdec.org/Downloads/DSM-II_Homosexuality_Revision.pdf). 91 Id. at 3. 92 Id. at 2. 93 Spitzer, supra note 89, at 15. 94 Spitzer, supra note 90, at 15, 2.
  16   [although] many claim that if there were no societal discrimination against homosexuality and no societal expectation of heterosexuality, homosexuals would never be distressed by their sexual orientation.”95 In the DSM-III, published in 1980, the definition changed again marking homosexuality as “ego-dystonic,” that is, classifying it as “other sexual disorders” including “distress about one’s sexual orientation.”96 The criticism against this diagnosis was (1) no comparable equal to a heterosexual distress disorder; and (2) consequences of being labeling homosexuality as an illness. Certainly, heterosexuals are frequently distressed by some aspects of their sexuality . . . there is not a single case . . . that describes an individual with a sustained pattern of heterosexual arousal who was distressed by being heterosexually aroused and wished to acquire homosexual arousal in order to initiate or maintain homosexual relationships . . . the inability of most heterosexuals to function homosexually puts them at no disadvantage except in extraordinary situations . . . [o]n the other hand, inability to function heterosexually has the built-in consequence of preventing, or at least interfering with, the ability to procreate—a matter that some judge to be not inconsequential.97 Although the illness/psychopathic disorder definition was removed from the DSM, this did not detour many from still classifying it as a problem. In the 1978 case of Ratchford v. Gay Lib, 98 Certiorari was denied where the University of Missouri denied recognition to Gay Lib because it would spread homosexuality, holding such denial unconstitutional. Justice Rehnquist in a dissenting opinion, concurred by Justice                                                                                                                 95 Id. 96 Am. Psychiatric Assoc., DSM-III, 296 (3rd ed. republished, 1980).   97 Spitzer, supra, note 89, at 15. 98 Ratchford v. Gay Lib.,434 U.S. 1080 (1978).
  17   Blackmun, proposed that Certiorari should have been granted and classified the issue at hand as: [T]he question is more akin to whether those suffering from measles have a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles, in order to urge repeal of a state law providing that measle[sic] sufferers be quarantined.99 This misappropriation has been interpreted to mean “[g]ays were not citizens who could assemble with others to persuade them of their cause. They were lepers who would infect all they touched.”100 Additionally, the same Immigration and Naturalization Service that excluded Boutilier101 did not until 1990—17 years after the removal by the DSM—surrender the power to exclude homosexuals as psychopaths.102 It is incredulous that the legal community was not influenced by the trend of the medical progression on the opinion of homosexuality. However much the degree of influence, it bears acknowledging that this time period as a whole created a Kulturkampf that is still alive and well in today’s society. III. Gay is Good: Stonewall Riots of 1969 and the beginning of the rebellion and attempted liberation. On June 27, 1969, at Stonewall Inn in Greenwich Village located in New York City, a gay bar was visited by police officers with a warrant to—for all purposes—kick out the gays from the bar.103 In the beginning, they all complied, applauding and cheering for                                                                                                                 99 Id. at 1084. 100 Yoshino, supra note 34, at 7, 45.   101 Boutilier, supra note 85, at 14. 102 Id. at 41. 103 Symposium, Stonewall at 25, 29 Harv. C.R.-C.L. L. Rev. 277 (1993).
  18   each other as they were forcibly removed from the bar.104 However, when drag queens and a lesbian were forced into a paddy wagon, it resulted in a riot. The crowd started throwing beer cans, bottles, and rocks at the police forcing them to take refuge in the same bar they just emptied.105 Inside they were subjected to cobblestones and trashcans filled with burning paper thrown into the Inn, and ultimately the Inn was set on fire.106 Gays around the country were tired of being treated worse than animals and the country took notice. Stonewall did not only open the preverbal closet door but started a national coming out of the closet event. “After Stonewall, lesbian and gay college groups grew like weeds in a vacant lot,”107 and “hundreds of new organizations formed, most notably GLF (Gay Liberation Front) and its successor GAA (Gay Activists Alliance)”. 108 In the area of literary censorship, new publications emerged, “many of these new publications were radical, advocating positions such as lesbian separatism (The Furies), free love (Gay), and gay political militancy (Gay Power). Community-centered newspapers, such as The Gay Blade in Washington, D.C., and the Bay Area Reporter in San Francisco, were established in this period identifying political points of contest.”109 Almost as a direct cause-and-effect, Hollywood’s censorship on movies was lifted, mostly noting their increased awareness of their gay audiences.110                                                                                                                 104 Id. 105 Id.   106  Id.   107  William  N.  Eskridge,  article,  Challenging  the  Apartheid  of  the  Closet:  Establishing  Conditions  for   Lesbian  and  Gay  Intimacy,  Nomos,  and  Citizenship,  1961-­‐1981,  25  Hofstra  L.  Rev.  817,  880  (1997).   108  Id.  at  875.   109  Id.  at  888.   110  Id.  at  898.  
  19   Gays started to enter into politics, most notably with the story of Harvey Milk who moved from New York in 1972 to Castro Street in San Francisco.111 Initially opening a camera shop, he ran a total of three times for city supervisor, losing the first two attempts but winning the third in 1977.112 Unfortunately, his public office tenancy was cut short when he was assassinated in 1978.113 Not surprisingly, anti-homosexual campaigns surfaced alongside the now more vocal and open gays of society. One notoriously known anti-gay activist was Anita Bryant who zealously campaigned against the homosexual agenda for equal rights in Florida. With her “Save Our Children” campaign, she believed she was correctly rooted for protest through a power that God gave her in claiming homosexuality a sin and using a role model argument that was ultimately successful.114 Her successful influence swept across other states115 using the same belief system to pass similar laws.116 In 1986, the first gay rights case hit the Supreme Court, Bowers v. Hardwick. 117 Michael Bowers was charged with consenting same-sex sodomy—a felony—when police entered his private bedroom on a call for an alleged robbery. He was charged and sentenced where on appeal to the Supreme Court they held with a plurality that the charge and sentence would stand since no fundamental right was violated. The dissent argued that the decision should not have been issued for four principles: the right to be let                                                                                                                 111  PBS  Online,  Harvey  Milk,  Hero  and  Martyr,   http://www.kqed.org/w/hood/castro/resourceguide/harveymilk.html  (last  visited  May  12,  2012).   112  Id.   113 Id. 114 Michael England, Note, In Whose Best Interest? Florida’s Statutory Ban on Homosexual Adoption and the Arguments Set Forth in Support of an Absolute Ban, Represent the Perceived Best Interest of a Conservative Morality and Not Those of the Children, 9 Whittier J. Child & Fam. Advoc. 279, 287 (2010). 115 Other states that were influenced: Minn., Kan., Okla., Or. 116 Anthony E. Varona, Article, Setting the Record Straight: The Effects of the Employment Non- Discrimination Act of 1997 on the First and Fourteenth Amendment Rights of Gay and Lesbian Schoolteachers, 6 CommLaw Conspectus 25, 31 (1998). 117 Bowers v. Hardwick, 478 U.S. 186 (1986).
  20   alone, violation of Equal Protection and cruel and unusual punishment, invasion of privacy under the Fourth Amendment, and that the religious purpose behind the law was not a valid state purpose.118 The dissent specified that the Court even had an almost “obsessive focus on homosexual activity” in the case, even though the statute was broadly written.119 It was not until years later in 2003, in Lawrence v. Texas, 120 did the Bowers decision get overturned creating a fundamental right to sexual intimacy in the privacy of one’s home, between two consenting adults. Although the decision does not discuss homosexuality specifically—discussed in more detail below—this does not mitigate the fact that homosexuals in America have been subjected to torturous, harassing, demeaning, offensive, animal-like, second-class citizenship treatment by the government. As was seen throughout the history presented, it is analogous to a bell that once it is rung the sound waves cannot be stopped. The federal government and Supreme Court has yet to rule that those discriminated based on sexual orientation are deserving of any more Equal Protection of the laws then Rational Basis. However when analyzing the treatment of the gay community through the history of America, it bears little argument that at a minimum the lowest standard under Equal Protection of Rational Basis is stupendously insufficient. LEGAL ANALYSIS AND ARGUMENT I. The Beginning of Equality: Ratification and Evolution of the 14th Amendment.                                                                                                                 118 Id. at 199-220.   119 Id. at 200. 120 Lawrence v. Texas, 539 U.S. 558 (2003).
  21   The Fourteenth Amendment of the United States Constitution was initially proposed to the thirty-ninth session of Congress in 1866, immediately after the Civil War.121 Upon ratification and adoption by both houses, the beginning stages of Equal Protection had begun. Specifically—as this article is addressing—the following section was adopted: 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.122 The intent behind this Amendment could not be any clearer based on the timing of its enactment: racial equality. Other issues before Congress during this time were ones concerning the South’s property and considering the rights for the newly freed slaves.123 Thus, it is neither ironic nor surprising that the Constitutional Amendment was passed in furtherance of the goal of racial equality. Congressman John Bingham drafted the Fourteenth Amendment.124 He initially proffered a speech in the House of Representatives in May 1866 proposing this Constitutional Amendment. He recognized that “[t]he want of the republic to day[sic] is not a Democratic party, is not a Republican party . . . [but] equality of the States, and the equal rights of all people under the sanctions of inviolable law.”125 A preliminary interpretation of his statement suggests acknowledgment that political party affiliation meant nothing when it came to equal application of laws.                                                                                                                 121 USCS Const. Amend. 14, § 5.   122 USCS Const. Amend. 14 Sec. 1, emphasis added. 123 Eric Schnapper, article, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 Va L Rev 753 (1985). 124 See supra n. 122 at 21. 125 Cong. Globe, 39th Cong., 1st Sess. 2542 (1866).  
  22   Although the Amendment’s purpose was more focused on equal rights for African Americans, the actual intent was clear: all Americans deserved equal treatment under the law. Bingham acknowledged that “[n]o state ever has the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws . . . although many of them have assumed and exercised the power, and that without remedy.”126 Even in 1866, states were violating the rights of the few in favor of the many. Sexual orientation is such a group that, as the history presented, has been oppressed and treated unequally since 1881. The Equal Protection Clause has in many ways come a long way since 1866. Many legal scholars have now interpreted the Equal Protection Clause to mean that all persons who are similarly situated to be treated alike.127 But, “[d]uring the first eighty years after its enactment however, the Supreme Court believed that the Fourteenth Amendment protected only racial and ethnic minorities.”128 Since then it has been expanded to include many other classes of individuals, standards of review, and enormous amounts of case law. The main principle emulating in the expansion was the belief that “the United States Constitution is a living document, designed for application to new circumstances upon a principled and historic yet realistic basis.”129 Sadly, we still have a long way to go. Since the Constitution is a document that changes with the times, it has been slow in protecting discrimination based on sexual orientation. The time is now to give those within this class equal treatment and basic rights the founding fathers imagined: the right to live.                                                                                                                 126 Id. 127 Plyler v. Doe, 457 U.S. 202, 216 (1982). 128 Gayle Lynn Pettinga, note, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 Ind. LJ 779 (1987).   129 Conrad v. Denver, 724 P.2d 1309, 1318 (Colo. 1986).
  23   A. Equal Protection Evolution: In a nutshell.130 As previously stated, there was only one classification intended under the Equal Protection Clause: race. Currently, six classifications are given special treatment applying four different standards of review. Comporting with the concept that the Constitution is a living, always changing document, it is palpable that this clause can grow to include new classifications today. Currently the highest level of review is Strict Scrutiny for those denoted a Suspect class: race, national origin, and alienage. The quasi-high level of protection is Intermediate Scrutiny encompassing the quasi-Suspect classes of gender and illegitimacy. The lowest level of scrutiny is given Rational Basis and incorporates all other groups not otherwise protected. However, the Court has crafted out a special single-group classification that does not fall within any of the above classes: the woman’s right have an abortion. Different from the rest, abortion is a standard all by itself following an Undue Burden standard.131 One of the earliest cases specifically dealing with race was Strauder v. W. Va.,132 where an African American defendant brought a claim for violations under the Equal Protection Clause when the state did not allow black men to serve on juries. The Supreme Court viewed this as the direct purpose why the Equal Protection Clause was enacted, stating: At the time when [the Fourteenth Amendment was] incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race                                                                                                                 130 See also, John Marquez Lundin, article, Making Equal Protection Analysis Make Sense, 49 Syracuse L. Rev. 1191 (1999). 131 Casey, supra note 1, at 1.   132 Strauder v. W. Va., 100 U.S. 303 (1880).
  24   would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual. It was well known that in some States laws making such discriminations then existed, and others might well be expected.133 The Court relied on the proposition that “it is necessary to look to the purpose which we have said was the pervading spirit of [the Fourteenth Amendment], the evil which [it was] designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accom plish[sic] it.”134 Even in 1880, the Supreme Court acknowledged that the Equal Protection Clause existed to remedy evils which society created against particular groups. The idea that the Equal Protection Clause was to offer protections against the “evils” that society produced did not take long to manifest to other areas. In the 1886 case of Yick Wo v. Hopkins, 135 Chinese laundromat owners were intentionally discriminated on by California solely because they were Chinese. The Court declared that they were denied Equal Protection based on a theory of alienage and nationality, and ultimately became entitled to a Suspect classification. Within a twenty-year period since the Amendment was adopted, the area of coverage and protections already began to grow beyond it’s intent. It is perplexing to believe that the Amendment cannot grow to include other minorities today. Gender-based classifications were added to the Equal Protection Clause in 1971,136 where the Court recognized that it was an impermissible discriminatory                                                                                                                 133 Id. at 306. 134 Slaughter-House Cases, 83 U.S. 36 (1872).     135 Yick Wo v. Hopkins, 118 U.S. 356 (1886). 136 Reed v. Reed, 404 U.S. 71 (1971).
  25   classification, however only initially granting the class Rational Basis—the lowest standard. That standard was increased in 1976 in the case of Craig v. Boren137 declaring that Intermediate Scrutiny was appropriate. In Justice Stevens’ concurring opinion regarding the criticism of applying another standard, he stated: [The Equal Protection Clause] does not direct the courts to apply one standard of review in some cases and a different standard in other cases. Whatever criticism may be leveled at a judicial opinion implying that there are at least three such standards applies with the same force to a double standard.138 Illegitimacy was added to Intermediate Scrutiny in 1978 in the case of Lalli v. Lalli, 139 acknowledging that prior cases140 ruled this class for Equal Protection analysis should only receive Rational Basis. It was not until Lalli that the standard was heightened and added this class to the quasi-Suspect sister of gender. Non-Suspect classifications receive the lowest level of protections. Such classes include: age,141 sexual orientation,142 disability,143 wealth,144 poverty,145 and smoking. 146 Age is not entitled to higher protections since everyone gets old.147 Disability is not given higher status because the range of disability varies between people and those disabled have legislative oversight and political support.148 Wealth is not protected because discrimination due to wealth is for legislatures to control.149 Poverty—similar to                                                                                                                 137 Craig v. Boren, 429 U.S. 190 (1976). 138 Id. at 211-212. 139 Lalli v. Lalli, 439 U.S. 259 (1978). 140 Mathews v. Lucas, 427 U.S. 495; affm’d by Trimble v. Gordon, 430 US 762 (1977).   141 Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976). 142 Romer, supra note 56, at 10. 143 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985). 144 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). 145 Harris v. McRae, 448 U.S. 297 (1980). 146 N.Y. City C.L.A.S.H. v. N.Y. City, 315 F.Supp2d 461 (S.D.N.Y. 2004). 147 Murgia, supra note 141, at 25. 148 Cleburne, supra note 143, at 25. 149 Rodriguez, supra note 144, at 25.
  26   wealth—is not entitled because just as one does not have a fundamental constitutional right to be rich, they don’t have an argument when they are indigent.150 Similarly, smoking is not entitled because it is considered to be a discretionary or voluntary act.151 Thus, based on the discrimination that has been perpetuated against those who classified themselves as gay or lesbian, it is bellicose to commit them to Rational Basis. Classes currently grouped with sexual orientation can change based on economy, medication, spending habits, even healthy lifestyle—while sexual orientation discrimination attacks one’s right to live their personal life because of the sex of another person—their partner. Abortion however went through a transformation as the Supreme Court considered it. In 1973, the legendary case of Roe v. Wade152 was initially decided holding it a non-Suspect level class, then on remand determining it a Suspect level class. It remained a Suspect level class until Casey v. Planned Parenthood153 in 1992 determining that giving abortion Strict Scrutiny was improper and thusly created a new standard not yet in existence: the Undue Burden standard. The creation, implementation, and application of this standard under the guise of Equal Protection created an interesting proposition: when a classification, due to government intrusion, deserves Equal Protection protections which does not fall into an already existing category, the Constitution allows a new standard to be made.154 This proposition is not only necessary—but also obligatory—to apply to sexual orientation                                                                                                                 150 McRae, supra note 145, at 25. 151 N.Y. City C.L.A.S.H., supra note 146, at 25.   152 Roe v. Wade, 410 U.S. 113 (1973). 153 Casey, supra, note 1, at 1. 154 See Id.  
  27   discrimination in opposing the sound waves of disgust that it released throughout American history and still today. B. The Implementation of Fundamental Rights into Equal Protection? Another aspect to Equal Protection is the idea that you are only entitled to higher scrutiny if you have a fundamental right—Suspect class—or a somewhat fundamental right—quasi-Suspect class—being infringed. Textually speaking, nowhere in the Fourteenth Amendment does it state “fundamental rights” in the same line as “Equal Protection.” Those who construe the Constitution verbatim should recognize the idea of fundamental rights being correlated with Equal Protection as only being persuasive at best. Non-textually speaking, the fundamental right argument has become an integral part of the Equal Protection Clause. In 1970, evaluation of Equal Protection claims fell between two tests: “Under the so-called ‘traditional test,’ a classification is said to be permissible under the Equal Protection Clause unless it is ‘without any reasonable basis . . . [o]n the other hand, if the classification affects a ‘fundamental right,’ then the state interest in perpetuating the classification must be ‘compelling’ in order to be sustained.”155 There have been alternative arguments made by the Supreme Court against the strict black and white Equal Protection Clause analysis. It was argued that concentration must be focused on the character of the classification, the importance to the members of that class, and the states interests in support of making that classification.156 This                                                                                                                 155 Dandridge v. Williams, 397 U.S. 471, 519-520 (1970) (Marshall, J., Brennan, J., dissenting). 156 Id.  
  28   article’s main goal is implementing this argument: the country’s need for a higher Equal Protection classification based on sexual orientation. Through the evolution of the Equal Protection Clause, we now know that quasi- Suspect classifications present the argument of “somewhat” fundamental rights needing protection. But that poses the question that unless it an enumerated fundamental right, who decides what is fundamental? It seems that the groups that fall within this somewhat fundamental right classification—and Suspect classifications—are subject to the court’s personal opinions, which has been criticized by members of the Supreme Court. [T]he Court’s insistence that Equal Protection analysis turns on the basis of a closed category of ‘fundamental rights’ involved a curious value judgment. It is certainly difficult to believe that a person whose very survival is at stake would be comforted by the knowledge that his ‘fundamental’ rights are preserved intact.157 Regardless of the issue whether “fundamental rights” should be a factor in Equal Protection discussions, it is noteworthy to state that the right to practice your sexual orientation is fundamental based on Lawrence. 158 This historic case did quite a few things—such as overturn Bowers159 —but more importantly Justice Kennedy created a fundamental right to private sexual intimacy, although applying it as a substantive due process violation. Never stating a fundamental right to be “gay,” Lawrence160 could be interpreted to mean a fundamental right to private consensual sexual intimacy no matter what sex or sexual orientation you are under the guise of the right to express sexuality.                                                                                                                 157 Id. at 530 n.14. 158 Lawrence, supra note 120, at 20. 159 Bowers, supra note 117, at 19. 160 Id.
  29   The fact that Lawrence161 was not decided on Equal Protection grounds by the majority is irrelevant. The concept and application is the same whether one believes fundamental rights are relevant to Equal Protection analysis or not, as the same outcome occurs: if a fundamental right is present, higher Equal Protection protections are required. Denying a class of people higher protections that are clearly defined by two specific traits—sodomy and sex of one’s partner—is invalid discrimination under Lawrence since it created the right to private sexual intimacy.162 C. Equal Protection Classifications: Deconstructed. An analysis of the current classifications is required in determining whether a new classification for sexual orientation is warranted. This is to examine how the Court and Constitution allowed specific classes of individuals to be given higher protections, but also to address the arguments why sexual orientation does not fall within any current standards thusly requiring the adoption of the Modus Vivendi Nexus Standard. i. Suspect Classifications. To be considered a Suspect classification a class must pass a litmus test of qualifiers. Although none alone is dispositive in permitting the classification to attach, they each still bear equal weight. First, the group must have suffered a history of purposeful discrimination.163 Second, evidence of discrimination that represents a gross unfairness that is inconsistent with the principles of Equal Protection.164 This qualifier has a few sub-considerations a court considers: whether the class is defined by a trait that bears no relation to perform in society; whether the class is burdened with unique                                                                                                                 161  Lawrence, supra note 120, at 20.   162 Id.   163 Watkins v. U.S. Army, 847 F.2d 1329, 1345 (9th Cir. 1988). 164 Id. at 1346.
  30   disabilities because of prejudice or inaccurate stereotypes; and whether the trait defining the class is immutable.165 The last consideration is whether the class is a discrete and insular minority that is politically powerless and underrepresented.166 Many federal courts—but not the U.S. Supreme Court—acknowledge that gays have been subjected to discrimination.167 However, regardless of the unacknowledgment by the Supreme Court, it is undeniable that gays—as a class—has been the target of many hateful and discriminatory attacks since 1881. When discussing whether the sexuality of an individual attributes to their performance in society, it is relevant when one is deemed “gay” by society because sexual orientation discrimination has been long ingrained in American history.168 Likewise, when discussing whether the sexual orientation of an individual is a unique disability that is prejudicial or inaccurate, views such as that gays proselytize children, or seek out children to molest, or are mentally ill or sick have been found to be incredibly inaccurate or false and result in prejudicial treatment.169 However, when discussing the qualifier of gross unfairness, the most critical factor has found to be whether the trait is immutable—unchangeable. This however is slightly more complicated in analysis then the other qualifiers. For example, with illegitimacy based classifications, Court’s felt it was “unjust” to condemn the child born out of wedlock who was in no way responsible for the situation and more importantly                                                                                                                 165 Id. 166 Id. at 1348. 167 E.g., Id. at 1345, reversed by rehearing, 875 F.2d 699;High Tech Gays v. Defense, 895 F.2d 563, 573 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 465 (7th Cir. 1989) (all holding homosexuals were subject to a history of discrimination).   168 Jantz v. Muci, 759 F. Supp. 143, 1549 (Kan. 1991). (revs’d and remanded on basis of qualified immunity) (citing 57 S. Cal. L. Rev. at 825-27). 169 Id.
  31   unable to change that status.170 Distinguishably, courts have declared that homosexuality is not immutable because it “is behavioral and hence fundamentally different from traits such as race, gender, or alienage.”171 However, although homosexuality does involve conduct that defines the class, the same can be said for gender—masculine or feminine conduct—and alienage—the actions of seeking residency in America. However, it seems that for homosexuality to be deemed purely immutable it will require that the characteristic is not “individual responsibility” but something more innate.172 , 173 Although this ignores the fact that it is similar to illegitimacy because society labels the individual as gay and it is difficult to change that status. Regardless, all attempts thus far arguing for immutability with homosexuality have failed. Finally, when discussing political powerlessness, there is a divide between courts whether gays lack political power. Some courts ruled that “[i]t is beyond doubt that the homosexual community has been able to reach out and gain the attention of politicians of all sorts,” 174 while other jurisdictions have believed the opposite. There are several factors which limit effective political action by homosexuals. Due to the harsh penalties imposed by society on persons identified as homosexual, many homosexual persons conceal their sexual orientation. Silence, however, has its cost. It may allow a given individual to escape from the discrimination, abuse, and even violence which is often directed at homosexuals, but it                                                                                                                 170 Parham v. Hughes, 441 U.S. 347, 352 (1979). 171 High Tech Gays, supra note 167, at 30, 573; E.g.. Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996); Watkins, supra note 163, at 29. 172 Frontiero v. Richardson, 411 U.S. 677, 686 (1973). 173 However, recent research may suggest genetic. See also, Dean Hamer, et al, A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation, 261 Science 321-27 (1993); Hamer & Copeland, The Science of Desire: The Search for the Gay Gene and the Biology of Behavior, (1994). Eskridge & Hunter, Sexuality, Gender, and the Law, 99, stating “the National Cancer Institute of the National Institutes of Health (NIH), claimed to have found on the X chromosome (X28, to be precise) where a “gay gene” would likely be found.” 174 Steffan v. Cheney, 780 F. Supp 1, 8 (U.S.D.C, D.C. 1991); See also, High Tech Gays, supra note 167, at 30 (anti-discrimination laws prove no politically powerlessness).
  32   ensures that homosexuals as a group are unheard politically. Moreover, the prejudice that compels many homosexuals to refrain from open political activity also limits access to political power in other ways. By diminishing contact between the heterosexual majority and avowed homosexuals, the majority loses any perspective on concerns in the homosexual community and is deprived of the resulting sensitivity to those concerns.175 Although in 1985, Justice Brennan acknowledged the political powerlessness of gays. [H]omosexuals constitute a significant and insular minority of this country's population [and] [b]ecause of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena.176 Thus, courts struggle in determining whether the use of the judicial system by the gay community means that they lack political power. On one hand the argument shows that the gay community has become more vocal in equality but at the same time rarely having any successful outcomes. There have been attempts at convincing courts that sexual orientation deserves Suspect classification protections by litigating all the qualifiers discussed above. Unfortunately, all attempts resulted in non-Suspect-Rational Basis status. One argument against awarding this higher classification focused at the failure to identify whether sexual orientation was conduct-based or status-based.177 ,178 Another argument refused to                                                                                                                 175 Jantz, supra note 168, at 30. 176 Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009, 1014 (1985) (Brennan, J., Marshall, J., dissenting).   177 Ben-Shalom, supra note 167 at 30, 465-466 (declared as suspect class, then on appeal revs’d declaring non-suspect class). 178 This author argues that practicing sexual orientation is conduct based. However society and courts have labeled this conduct as “gay” or “queer” causing the conduct to produce a status in society of a lesser being, thus making the issue of whether homosexuality is conduct or status based irrelevant.
  33   declare homosexuality a Suspect class because no other higher court had ever declared it entitled to be given a higher standard.179 The famous Supreme Court decision of Romer v. Evans, overturning an anti-gay Colorado Constitutional Amendment, failed to recognize (by omission) the argument that gays deserved Suspect class status.180 This decision was used as support in another case using Romer as persuasive precedent for Suspect classification based on omission. However the court refused to read Romer that liberally since the Supreme Court was mute on the topic.181 There additionally have been attempts by comparing homosexuality to race, which also failed. “[I]t would not pass even Rational Basis review for the military to reject service members because of characteristics—such as race or religion or the lack of inherited wealth—that have absolutely no bearing on their military service. Homosexuality, by contrast, is not irrelevant to homosexual conduct.”182 Unfortunately, due to many personal and ideological biases in society, Suspect classification for homosexuality may be a misnomer for quite some time. Not only do political perceptions have to change but also evidence of a stronger stance of political powerlessness. Even more trying is proving being gay is not a choice—thus immutable. Although society has come a long way in changing their views on homosexuality 183 discrimination based on it it is alive and well. These views are difficult to change and                                                                                                                 179 Watkins, supra note 163, at 29, 722. 180 Romer, supra note 56, at 10. 181 Cook v. Gates, 528 F.3d. 42, 61 (1st Cir. 2008). 182 Steffan v. Perry, 41 F.3d 677, 689 (D.C. Cir. 1994). See also Darren Lenard Hutchinson, article, Ignoring the Sexualization of Race: Heteronormativity, Critical Race Theory and Anti-Racist Politics, 47 Buffalo L. Rev. 1 (1999); , Francisco Valdes, article, Intersections of Race, Ethnicity, Class, Gender & Sexual Orientation: Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory, and Politics of "Sexual Orientation ", 48 Hastings L.J. 1293 (1997). 183 Boy Scouts of Am. v. Dale, 530 U.S. 640, 700-701 (2000) (Souter, J., Ginsburg, J., Breyer, J., dissenting).
  34   until the day that courts are willing to accept new views on homosexuality, Suspect classification may be far off in the distance. ii. Quasi-Suspect Classification. This classification was not intended under the original Equal Protection Clause. Comparable to the Undue Burden standard, discussed below, the Supreme Court created this standard because of the proposition that when it comes to Equal Protection everything isn’t black and white.184 Constitutionally speaking it does not require that things that are different in fact or opinion to be treated the same.185 It was this principle that the Court utilized in Plyler v. Doe. 186 There the Court acknowledged “we would not be faithful to our obligations under the Fourteenth Amendment if we applied to deferential a standard [Rational Basis] to every classification.”187 It was discussed that Intermediate Scrutiny permitted the Court to evaluate the rationality of legislative judgment based in constitutional principles, and in utilization, gave the Court the ability to discern and over time lift state created absolutes above the level of pragmatic political judgments of a specific time and place.188 The holding in Plyler referred to other cases adopting Intermediate Scrutiny for quasi-Suspect classifications. One case was Craig v. Boren that created a higher age of majority for males to buy liquor then their female equals, holding that sex-based classifications were subject to quasi-Suspect status.189 Using precedent that used Rational Basis for such a classification, the Court increased protections for gender                                                                                                                 184 Tigner v. Tex., 310 U.S. 141, 147 (1940). 185 Id. 186 Plyler, supra note 127, at 22, 216. 187 Id. 188 Id. at 218 n.16.   189 Boren, supra note 137, at 25.
  35   without much explanation. However, the Court did note the historical problems with sex stereotyping in Equal Protection issues, “archaic and overbroad generalizations . . . could not justify use of a gender line in determining eligibility for government entitlements.”190 An argument can be made that sexual orientation is similar in regard to the principle adopted in imploring an increased classification based on gender. Just as gender was increased in adopting “archaic and overbroad” generalizations, such can be the same said for homosexuality. The other case that increased a class to quasi-Suspect status is Lalli v. Lalli, 191 with illegitimacy. There the Court stated that Strict Scrutiny was the proper level of review but the Court used Intermediate Scrutiny language in determining the constitutionality of the statute. Although the statute was held to withstand constitutional muster it nonetheless pushed this classification to a higher standard of quasi-Suspect status. It is perplexing that sexual orientation has never at a minimum been granted quasi-Suspect classification. The arguments have been made and the lower courts have adopted those higher protections initially. However, on appeal, the higher federal courts consistently disagreed and removed those higher protections. Before Lawrence192 decriminalized the idea of sodomy, many cases ruled that sexual orientation was not worthy of receiving a higher standard of protection because of the criminal acts committed by that group.193 Of course now having a fundamental right to engage in sexual relations between consenting adults without government intrusion,                                                                                                                 190 Id. at 198.   191 Lalli, supra note 139, at 25. 192 Lawrence, supra note 120, at 20. 193 See Ben-Shalom, supra note 167, at 30.
  36   that is no longer a valid argument. However, imaginative and innovative anti-gay arguments still preclude the class from gaining any additional protection. In Equality Found. v. City of Cincinnati, the Southern District of Ohio determined that “sexual orientation is a quasi-Suspect[sic] classification.”194 In holding, the court even stated, “we conclude that homo-, hetero-, and bisexual orientation is a characteristic beyond the control of the individual.”195 It was that exact reason why on appeal to the 6th Circuit, the decision was reversed. Assuming arguendo the truth of the scientific theory that sexual orientation is a "characteristic beyond the control of the individual" as found by the trial court . . . the reality remains that no law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics such as innate desires, drives, and thoughts. Those persons having a homosexual "orientation" simply do not, as such, comprise an identifiable class.196 In High Tech Gays197 , the argument for a higher standard was made as well. But the court’s reasoning was based upon similar principles portrayed in Equality Found. with further explanations in denying granting those protections. While we do agree that homosexuals have suffered a history of discrimination, we do not believe that they meet the other criteria. Homosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes. The behavior or conduct of such already recognized classes is[sic] irrelevant to their identification. Moreover, legislatures have addressed and continue to address the discrimination suffered by homosexuals on account of their sexual orientation through the passage of                                                                                                                 194 Equality Found. v. City of Cincinnati, 860 F. Supp. 417, 436 (U.S.D.C., S.D.OH 1994). 195 Id. at 437. 196 Id. on appeal, 54 F.3d 261, 267 (6th Cir. 1995). 197 High Tech Gays, supra note 167, at 30.
  37   anti-discrimination legislation. Thus, homosexuals are not without political power; they have the ability to and do "attract the attention of the lawmakers," as evidenced by such legislation.198 It seems that the argument against quasi-Suspect status is the same as Suspect status: immutability. Focus on this particular qualifier overshadows the two considerations of gross unfairness relating to inaccurate or prejudicial stereotypes and trait bears no relation to performance in society. Further evaluation of these two qualifiers would dictate that many of the stereotypes relating to homosexuality could be factually challenged, including the whether being gay effects performance in society. As can be seen from the arguments and decisions, courts have been reluctant to add sexual orientation with the other classes already receiving higher protections. This does not mean that sexual orientation discrimination does not deserve higher protection— as arguendo, High Tech Gays acknowledges—but one proper classification and standard does not yet exist to effectuate sufficient protections, until the Modus Vivendi Nexus Standard. iii. The “Undue Burden” Standard. The creation and application of the Undue Burden standard highly supports the proposition that court’s can and will create new standards when the right case and argument is presented. This standard stands alone from its Equal Protection sister standards, and specifically addresses women right to choose to have an abortion. In 1973, Roe v. Wade199 made headlines as the Supreme Court decision that granted abortion Strict Scrutiny protection. Originally, abortion was Rational Basis but                                                                                                                 198 Id. at 573-574.   199  Roe, supra note 152, at 26. (see decision for more information).  
  38   then increased to Strict Scrutiny by the Supreme Court based on personal privacy. “[O]nly personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty, are included in this guarantee of personal privacy.’”200 The Court noted this right to privacy, found either in the Fourteenth or Ninth Amendment, and was broad enough to include the woman’s right to choose to terminate her pregnancy.201 Then in 1992, in Planned Parenthood v. Casey, 202 the Supreme Court removed Strict Scrutiny as the proper standard to apply in abortion cases and created the Undue Burden standard. Justice O’Connor delivered the opinion of the Court and many of the same arguments can be argued in support for higher protections for discrimination based on sexual orientation. Constitutional protections supporting the woman’s right to choose came from the Due Process Clause of the Fifth Amendment, that “no State shall deprive any person of life, liberty[,] or property, without due process of the law.”203 “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before.”204 This is comparable to sexual orientation. For those that believe being gay is a choice—as this article implores it is not—must concede that the woman’s right to terminate a pregnancy is just as much as a choice. For those who argue being gay is not a choice, the argument is still valid as providing evidence supporting an argument for depravation of life under the Fifth Amendment in discriminating based on sexual orientation.                                                                                                                 200 Id. at 152. 201 Id. at 153.   202 Casey, supra note 1, at 1. 203 Id. at 846. 204 Id. at 847.  
  39   Next in addressing the comparison to the morality and spiritual arguments between sexual orientation and Equal Protection in relation to abortion, similar issues were presented for abortion and are equally applicable to sexual orientation. Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.205 It is well known that many see abortion as an evil undertaking while others support the woman’s right to choose. Similarly, it is well known that many confer sexual orientation to be a sin and morally wrong while others disagree. Additionally, many have personal moral objections to abortion—but nonetheless abortion is still allowed. Conversely, it is known that personal moral objections to homosexuality are present in society but nonetheless homosexuality is still allowed. Furthermore, Justice O’Connor’s view is that a state cannot compel one position over another when there are two competing positions. Specifically, a state cannot offend a personal liberty of a person. [C]hoices central to personal dignity and autonomy are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.206 Undistinguishable is the analogous nature of the above statement with sexual orientation. Those who identify as gay would argue it is a central component of their                                                                                                                 205 Id. at 850. 206 Id. at 851.
  40   dignity and life. It defines an entire group, and to this point, the government has either attempted to or conjured ways to prohibit the gay community from having similar personal freedoms as were described for abortion. But yet the arguments made for the woman’s right to choose passed constitutional scrutiny by the Supreme Court while the same application to sexual orientation does not even get out of Rational Basis. It is important to know that the Undue Burden standard is the following: “the right of the woman to choose to have an abortion before viability and to obtain it with undue influence from the State.”207 Obviously the right to have an abortion is not absolute, that is, the state can regulate abortion after viability.208 Thus, this author’s argument for the Standard aligns with this type of standard created in the Roe and Casey progeny. It is also important to recognize how Casey209 interpreted the standards from Roe.210 “While [Roe] has engendered disapproval, it has not been unworkable.”211 It is obvious that the proposed standard is subject to scrutiny, disapproval, or even disgust— but that alone does not make this standard unadoptable or any less applicable currently. Time’s change, views change, and the Constitution changes with it. The majority in Casey acknowledges this by the evolution of segregation and education. “Society's understanding of the facts upon which a constitutional ruling was sought in 1954 [separate but not equal212 ] was thus fundamentally different from the basis claimed for the decision in 1896 [separate but equal213 ].”214 The factual underpinnings of the 1896                                                                                                                 207 Id. at 846. 208 See also, Janeen F. Berkowitz, article, Supreme Court Law: Stenberg v. Carhart: Woman Retain their Right to Choose, 91 J. Crim. L. & Criminology 337 (2001). 209 Casey, supra note 1, at 1. 210 Roe, supra note 152, at 26. 211 Casey, supra note 1, at 1, 860.   212 Brown v. Bd. of Educ., 347 U.S. 483 (1954).   213 Plessy v. Ferguson, 163 U.S. 537 (1896). 214 Casey, supra note 1, at 1, 863.
  41   decision were so at odds to the Court in 1954 that “the decision to reexamine . . . was on this ground alone not only justified but required.”215 Similarly, the attitude of the country has significantly changed since the late 1800’s. There has been more fighting by the gay community for equality. One can say the opinion of courts, and Supreme Court, has significantly changed acknowledging the plight of the homosexual community through decisions such as Romer 216 and Lawrence.217 The most important, constitutionally sound, and historically accurate legal argument made in the Casey decision in support of adopting the Undue Burden standard this author believes applies to this article’s main premise is: [w]here, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution [emphasis added].218 It is uncontested that rights surrounding homosexuality are presently in national controversy and have been for quite some time. Nationwide divisions have been created resulting from the fight of equality and right to live one’s life. As Justice O’Connor argued, it is not the place of the Court to pick sides but to interpret the Constitution and to apply its principles to present day opinions—just like they did with education and segregation.                                                                                                                 215 Id. 216 Romer, supra note 56, at 10. 217 Lawrence, supra note 120, at 20. 218 Casey, supra note 1, at 1, 866-867.  
  42   Thus, Equal Protection must afford protections in one’s sexual orientation, as it is either a personal choice—like abortion—or not a personal choice—like race or illegitimacy. Since sexual orientation has not been afforded protections anywhere else in the Equal Protection Clause and courts are unwilling to provide higher protections greater than Rational Basis, then there must be a separately crafted standard similar to Undue Burden—The Modus Vivendi Nexus Standard. Too many courts have been at odds with one another—including the Supreme Court—with the idea of sexual orientation and Equal Protection. This author seeks the adoption of the Modus Vivendi Nexus Standard for sexual orientation moving the national controversy monumentally forward in furthering full equality as the Constitution demands. II. Modus Vivendi Nexus Standard: The New Undue Burden. Equal Protection to this day has yet to encompass proper protections for those who are discriminated based on sexual orientation. While no higher standard has been adopted, legal scholars and courts have been at odds with one another fighting for both sides of the cause. The Modus Vivendi Nexus Standard presents a middle ground. This Standard states that neither the state nor government can intrude on, or discriminate on the basis of, one’s sexual orientation, unless there is a direct nexus to important governmental interests in identifying one’s sexual orientation and those interests are narrowly tailored to that nexus. A. Modus Vivendi.
  43   This Latin phrase has been used in the legal world before but in different context. The English translation is “[a] method of living.”219 While in the legal world, it was more often used to refer “to a central principle in a field of law.”220 Thus, it is this purpose why this author proposes that the Standard be labeled and called Modus Vivendi Nexus Standard, as it specifically guards against state and government intrusion into one’s “method of living.” There has been significant discrimination against those of the gay community as the history portion of this article has pointed out. Admittedly, there have been great strides in the area of gay rights law since 1881. Under the current Equal Protection Clause, sexual orientation only gets protection when there is no Rational Basis in the interests being sought. However this offers minimal protections since it is a rare case that a state or federal statute would not be held to have a Rational Basis in a valid state interest. By adopting this Standard it will mean protecting those discriminated based on sexual orientation because of their “method of living.” The right for anyone in America to live his or her life without state or federal interference was intended with the original adoption of the Equal Protection Clause, just specifically targeting African Americans at that time. There have been many declarations by the country over the course of time recognizing the importance of self-preservation (racial, ethnicity, women’s liberation, religion, abortion, etc.). It is now the time that America realizes that after one hundred,                                                                                                                 219 Russ Versteeg, Essential Latin for Lawyers, 144 (1990). 220 Id.  
  44   thirty-one years of documented homophobic and anti-gay treatment is enough: it is time to let all American’s live their life. B. Fundamental Rights and Sexual Orientation. As previously discussed, there have been debates whether courts have properly interpreted the Equal Protection Clause to include fundamental rights in Equal Protection analysis. This author urges recognition that under either argument, the right of practicing one’s sexual orientation is a classification worthy of higher protections. Lawrence221 argued for such a proposition indirectly. Although Lawrence222 specifically dealt with criminalization of sodomy that ultimately produced the fundamental right of sexual intimacy between two consenting adults, the inferences from the Court’s reasoning requires a deeper analysis. Not only did Lawrence prevent government intrusion into the bedroom, but also removed government regulation on a defining characteristic of homosexuality.223 A possible interpretation of this decision is that a creation of a fundamental right to practice your sexual orientation was inadvertently created. However for those who do not read Lawrence224 as liberally, the argument is still valid. It would offend common sense to argue that America has not been aggressively discriminative towards the gay community. It cannot be ignored that the Equal Protection Clause never stated anything about a fundamental right in correlation to being                                                                                                                 221 Lawrence, supra note 120, at 20. 222 Id. 223 This author takes note that sex between two females may or may not involve sodomy. However, the argument is not diluted because the act of two women having sex is defining conduct similar to gay male sex, leading to the status of being “gay.” 224 Id.
  45   granted equal protections. Therefore, it comes to a simple issue: whether fundamental rights are important in awarding Equal Protection protections. If so, then a fundamental right exists under Lawrence225 as was discussed. If not, then the argument for the Standard does not fail since sufficient evidence is presented supporting the need for additional protections higher than Rational Basis. As was argued in Casey226 by Justice O’Connor and many other cases, 227 the right to personal autonomy and concept of existence is held at the highest regard under the Constitution. Thus, sexual orientation is a classification falling under this same theory. Minimally, sexual orientation deserves higher protections then it currently receives— Rational Basis—irrespective of the belief that a fundamental right is required to be granted higher protections. C. Modus Vivendi Nexus Standard: Deconstructed. The entire Standard is: neither the state nor government can intrude on, or discriminate on the basis of, a person’s sexual orientation, unless there is a direct nexus to important governmental interests in identifying one’s sexual orientation and those objectives are narrowly tailored to that nexus. Analyzing the components of the proposed Standard is necessary to show how this Standard achieves the objective of higher rights for sexual orientation discrimination. By doing so, the Standard will be placed between Intermediate Scrutiny and Strict Scrutiny, with the burden of proof on the state.                                                                                                                 225  Id.   226 Casey, supra note 1, at 1. 227 See Skinner v. Okla., 316 U.S. 535 (1942) [discussing right to procreate]; Griswold v. Conn., 381 U.S. 479 (1965) [discussing right to martial intimacy]; Lawrence, supra, note 116, at 21 [discussing right to private sexual intimacy]; Zablocki v. Redhail, 434 U.S. 374 (1978) [discussing right to marry]; Jacobson v. Mass., 197 U.S. 11 (1905) [discussing right to refuse medical treatment]; Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990) [discussing right to refuse life-saving medical treatment].  
  46   The Modus Vivendi Standard was created with the understanding that there has been an acknowledged history of purposeful discrimination that cannot be denied by any party. There has been a gross unfairness against the homosexual community that bears no relation to production in society. These statements are supported strongly by the history portion of this article. The biggest criticisms, addressed in section C of this article are politically powerlessness and immutability. With these in mind, the author believes that this Standard properly takes these into account for a lower standard than Strict Scrutiny; however, enough evidence has been presented to argue for a higher standard than Intermediate Scrutiny, or at a minimum, higher than Rational Basis. i. Nexus and Important Governmental Objective. A nexus has been used by the Court in analyzing a number of issues that have been presented on constitutional violations. For example, federal taxpayer standing has used a nexus in showing “a logical link between that status and the type of legislative enactment attacked.”228 In the area of Equal Protection, it has been discussed in the area of fundamental rights with a non-enumerated liberty, saying [t]he task in every case should be to determine the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution. As the nexus between the specific constitutional guarantee and the nonconstitutional[sic] interest draws closer, the nonconstitutional[sic] interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly.229                                                                                                                 228 Flast v. Cohen, 392 U.S. 83, 102 (1968). 229 Rodriguez, supra note 144, at 25, 102-103 (Marshall, J., Douglas, J., dissenting).
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Thesispub

  • 1. MODUS VIVENDI, THE NEW UNDUE BURDEN OF THE FEDERAL EQUAL PROTECTION CLAUSE By: Nicholas A. Yanchar, J.D., LL.Mi INTRODUCTION Our obligation is to define the liberty of all, not to mandate our own moral code . . . [a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.1 This is one of the most powerful statements when it comes to human existence. But this statement did not come from a book or a short story; it came from Supreme Court Justice Sandra Day O’Connor in her majority opinion of Planned Parenthood v. Casey. 2 Depressingly, moral views of the many have been allowed to overrule the liberties of the few and courts have been unwilling to stand against those wronged by the sword of injustice. Gays3 have been the subject of disdain and hate since the late 1880’s, and to date not much has changed.4 Advocates of anti-gay rhetoric in America have been successful in restricting and combating against the liberties of human decency that the gay community deserves. Currently under the Fourteenth Amendment’s Equal Protection Clause of the United States Constitution, sexual orientation is a non-Suspect classification granting it only Rational Basis review. This is the lowest standard that could be offered under Equal                                                                                                                 1 Planned Parenthood v. Casey, 505 U.S. 833, 850-851 (1992). 2 Id. 3 Hereinafter, “gay” or “gays” refers primarily to gay men due to the historical stance against male homosexuality, but lesbian women are included in this definition where appropriate, or unless otherwise specified. 4 See also, General Article, Sexual Orientation and the Law: A Selective Bibliography on Homosexuality and the Law, 1969-1993, 86 Law Libr. J. 1 (1994).  
  • 2.   2   Protection violations. This standard is insufficient to rectify intentional and purposeful discrimination that has been enacted by the government against the gay community. Injustices against this community have been aggressive and highly intrusive throughout history. Besides legal restrictions, medical experiments—either voluntary or involuntary—such as electroshock therapy and brain surgery were conducted on gay men.5 No matter how hard people have tried to erase gays from the country however, they have always persevered. Eventually, the gay community fought back leading America to come to terms with homosexuality.6 This revolution lead America to current day where homosexuality is more rooted in society and those who are gay have come out of the closet proclaiming equality. However, equality is only a pipe dream when the Equal Protection Clause offers minimal protections from state intrusion. One-hundred and thirty-three years7 after the first anti-gay law was enacted in America and forty-three years8 after the revolt by the gay community for equality, the United States Constitution has still failed to offer protections to this worthy class. This article has one focus it seeks to advocate: higher protections for discrimination based on sexual orientation. This author’s argument is adopting a new standard of review under Equal Protection altogether, deemed the Modus Vivendi Nexus Standard, in consideration of court reluctance to allow higher protections under a current standard for the gay community.                                                                                                                 5 William N. Eskridge, Jr., Gaylaw 81 (Harvard Univ. Press eds., 1999). 6 Symposium, Stonewall at 25, 29 Harv. C.R.-C.L. L. Rev. 277 (1993). 7 Eskridge, supra note 5, at 2. 8 Symposium, supra note 6, at 2.  
  • 3.   3   The Modus Vivendi Nexus Standard requires showing a nexus between an important governmental objective to the statute or law at issue, and if such nexus is shown, that the statute or law is narrowly tailored to achieve that goal without violating one’s right to practicing their sexual orientation. Throughout this article, there will be two main parts with subparts. The first part will show the historical discrimination by America, while the second part will address the legal history and analysis, including the proposal for the new Modus Vivendi Nexus Standard. The first part has three sub-parts. Subpart one presents the idea of disgust in politics and how that played a roll in sodomy laws, gender roles, and pre- and post-World War I politics and constitutional restraints of expression. The second subpart presents the transformation of disgust to immorality resulting in a Kulturkampf, including a comparison of American and Nazi-Germany laws. In addition, this author will address the evolution of the medical community’s opinion on homosexuality and how that impacted American law. The third subpart will analyze the revolt of the homosexual community from 1969 to present. Specifically, this part will address the gay rights movement and how America took defense against the arguments for equality. The second main part will consist of two subparts. Subpart one will analyze the historical context and evolution of the Equal Protection Clause. Within this subpart there will be an analysis of its classifications, standards of review, importance and unimportance of fundamental rights in Equal Protection analysis, and deconstruction of the requirements for the different classifications.
  • 4.   4   The second subpart will introduce the Modus Vivendi Nexus Standard. Contained therein will be the meaning of the standard, discussion of fundamental rights in relation to sexual orientation, deconstruction of the proposed Standard, and counter arguments. Within the counter arguments, there will be proposed arguments discrediting the new Standard and responses to those attacks. Lastly, an application of the Standard used in two case examples. HISTORY AND BACKGROUND It is common knowledge that gays and lesbians are not treated equally with their heterosexual counterparts. Unlike heterosexuality, the gay community has been subjected to hateful and demoralizing actions by individuals, local and state governments, and the federal government.9 As a result gays have lived in fear of being who they are due to the ramifications and lack of protections from the constitution, which theoretically, was created to prevent those injustices.10 One possible explanation has been presented how these injustices have been allowed to occur without redress: the idea of disgust. Many strategies and arguments in politics have unconsciously used the idea of disgust in anti-gay laws.11 A deeper analysis produces visualizations like “feces, other bodily fluids, corpses, and animals or insects that have related properties (slimy, smelly, oozy).”12 Specifically, projective disgust—projection of disgust properties onto a group or individual—is act of a group or person linking another group or person based on one of                                                                                                                 9 This whole article addresses the statements made within this sentence. 10 Alba Conte, Sexual Orientation and Legal Rights, ix (John Wiley & Sons, Inc. eds., Vol. 1 1998). 11 Martha C. Nussbaum, From Disgust to Humanity 8 (Oxford Univ. Press eds, 2010). 12 Id. at 14.  
  • 5.   5   the principles outlined above.13 Historical examples include the Nazi opinions of Jews as slimy or similar to maggots, although we know that is untrue, it worked for Nazi Germany.14 Thusly, it is not shocking that gays fall into the idea of disgust for mainstream society.15 In gay-male sex visualizations of “contamination-by-penetration,” that is, semen to feces is produced.16 Arguably heterosexual sex is no better besides the strong connection to mortality and reproduction.17 One key difference however between gay and heterosexual sex is that in gay sex a male receives the bodily fluids (semen) while in heterosexual sex the woman is the one who receives those fluids.18 These graphic visualizations have a purpose: the idea of disgust has been forced upon subordinate groups as a way of stigmatizing them as sick and inferior.19 However, disgust provides no valid reason for compromising equalities that are constitutionally required.20 Nonetheless, this has not stopped society from condemnation of gays to second class-citizens. The following history accounts of how disgust was projected in America’s perception on gays. I. Immorality to Regulation of Sexual Intimacy. In 1881, the post-Civil War state of New York passed a bill criminalizing sodomy but not specifying homosexuals as the intended class.21 As a result of these kinds of laws enacted between the 1880’s and 1900’s, male subcultures were born in New York City,                                                                                                                 13 Id. at 16. 14 Id. 15 Id. at 18. 16 Id. at 18-19. 17 Id. at 19. 18 Id. 19 Id. at 20. 20 Id. at 21.   21 Eskridge, supra note 5, at 2, 19.
  • 6.   6   San Francisco, St. Louis, Philadelphia, Chicago, Boston, New Orleans, and Washington D.C. By the early 1900’s, Milwaukee, Denver, Louisville, and Portland (Oregon) were considered as “homosexual capitals.”22 During this period, American doctors considered the cause of this gender-related detour from mainstream society concluding that this type of gender inversion was a dangerous sickness.23 These conclusions in conjuncture with media influence resulted in defensive action in all states.24 These included anti-gay societies, civilians assisting police in arrests of those engaged in sodomy, gender-role inversion of prostitutes and theatre, and gay establishments.25 Until 1921, “social disgust and state action” played out at the municipal, state, and federal levels aiming at suppression of gender roles and sexual variations.26 Specifically, states responded by enforcing felony sodomy statutes with neutral application to male and females alike. A shift from concern of homosexuality to a higher societal concern about same- sex eroticism occurred due to the Newport investigation in March 1919, contemporaneous with World War I.27 This investigation concerned sailors who cross- dressed, were described as effeminate, solicited and performed oral sex with other men, and were deemed “morally degenerated.”28 By Court Marshall, they were dishonorably discharged and jailed. In response, Congress and the War Department quietly passed an ex-post facto Articles of War criminalizing the same acts these sailors were imprisoned                                                                                                                 22 Id. at 21. 23 Id. at 22. 24 Id. at 23. 25 Id. at 23-24. 26 Id. at 24.   27 Id. at 36. 28 Id. (citing 1919 Court of Inquiry Transcript, 268-269, which can be found in National Archives, Record Group 125, Records of Proceedings of Courts of Inquiry etc., No. 10821-1).
  • 7.   7   for, specifying that the armed forces could forcibly remove or exclude “all suspected perverts.”29 Thus, this was the military’s first regulation with legal support screening out gay male applicants who wanted to enlist.30 During the era of World War I, 31 psychoanalyst Sigmund Freud published his opinion on sexual orientation presenting a different perspective.32 He believed that sexual orientation was “a crucial part of a person’s identity, distinct from biological sex or gender character.”33 He argued that all human beings were innately bisexual, and in his opinion, declared homosexuality more culturally learned then biological.34 When discussing possible “conversion therapies,” he argued they were unrealistic by comparing the idea that you cannot convert a homosexual to heterosexual with any more ease as you could doing the opposite.35 His theory, along with a society going through a sexual transformation with gender roles and sexuality, made society uncomfortable causing reactions. One example of a reaction happened in an Ohio case where a judge deemed homosexuals “sexual perverts [who] were ferocious animals who engaged in a degenerate sexual commerce with little boys or little girls.”36 This decision became the groundwork for a state like Ohio to create state interests in controlling and punishing the supposed                                                                                                                 29 Id. at 36-37. 30 Id. at 37. 31 Actually beginning in 1910, but influential highly in World War I era. 32 Id. at 38. (citing Sigmund Freud, Three Essays on Sexuality (1905) and The Psychogenesis of a Case of Homosexuality in a Woman (1920)). 33 Id. at 39. 34 Kenji Yoshino, Covering 36 (Random House, eds., 1st ed. 2006).   35 Id. 36 Barnett v. State, 135 N.E. 647, 649 (Ohio 1922).
  • 8.   8   psychopathic homosexual, drive any expression of it underground, and protect the public.37 Post World War I had a massive influx of gay subculture and the government worked harder on publically suppressing it.38 In order for the state to curtail youth from being attracted to this subculture, it restricted positive role models as a deterrent.39 The government suppressed gay association by police departments being made aware of popular gay hangouts and organizing teams posing as decoys to attract solicitations, raiding gay bars, baths, and other spaces.40 Revocation of a liquor license as a method of control by the state, requiring “good character” and preventing the premises from being a “resort of disreputable persons.”41 If a violation occurred, their liquor license would be suspended or revoked.42 Books with homosexual themes or conduct were censored and removed from bookshelves. However, uncensored literary works depicting homophobia and work of sexologists were not censored.43 In filmography, censorship was effortlessly used on homosexual depictions by a Supreme Court exemption of movies from First Amendment protections.44 Thus, Hollywood adopted the Production Code in 1930 preventing any mention of                                                                                                                 37 Yoshino, supra note 34, at 7, 45. 38 Eskridge, supra note 5, at 2, 43. 39 Id. at 44. 40 Id. (citing Allan Berube, The History of Gay Bathhouses in Policing Public Sex 187-220 (Dangerous Bedfellows, eds., 1996)).   41  Id.  at  45.  (citing  Chicago  Code,  1911,  §§ 1525-26, 1536).   42  Id.   43  Id.  at  46.   44  Id.  at  48.  
  • 9.   9   homosexuality in movies or on Broadway, but could be replaced by “sissy” and “tomboy” instead.45 In 1940, America instituted the mandatory draft and the Newport event resurfaced. Except this time the military instituted a screening process that intrusively asked new recruits their sexual orientation upon enlisting, men and women46 alike.47 However when they asked women their orientation, it ended up beginning the next big homophobic investigation by the government since Newport. This time it happened at the Women’s Army Corps (hereinafter “W.A.C.”) training camp in the spring of 1944. Triggered by a letter from a mother suggesting that there were a bunch of sex maniacs and homosexuals at W.A.C., she specifically stated that one alleged “maniac” had molested her daughter.48 The time between the Newport and WAC investigations reflects the transition from the focus of “immorality” to the state wanting to regulate specific intimacy, regardless if it was consensual.49 This next time period started the recognition that social and intellectual developments strongly influenced law. 50 Those who realized they fell into this disfavored category internalized the shame and assumed a “mask,” remaining silent about their individuality and trying to correct the imbalance that supposedly occurred within them.51 The law supported this pressure by normalizing sex based on heterosexual                                                                                                                 45  Id.  at  48-­‐49.  See  also  William  N.  Eskridge,  Jr.,  Law  and  the  Construction  of  the  Closet:  American   Regulation  of  Same-­‐Sex  Intimacy,  1880-­‐1946,  82  Iowa  L.  Rev.  1007  (1997).   46  Originally,  women  were  never  asked  their  sexual  orientation  until  after  July  1944.  See  supra  note   32,  at  7.   47  Eskridge, supra note 5, at 2,  50.   48 Id. at 51. (citing Lieut. Col. Birge and Capt. Ruby Herman, Report to The Acting Inspector General, July 29, 1944 (available at the National Arhives, Record Group 159 [Office of Army Inspector General], File 333.9 [Third WAC Training Center])). 49 Id. 50 Id. at 52. 51 Id.
  • 10.   10   procreation and giving power to those who wanted to control the homosexual.52 If a person would be strong-willed enough to protest against this, it fell on deaf ears since they had no legal remedy.53 Being forced underground, the gay culture mutated into a double-life conundrum: gay behind closed doors, and claiming to be heterosexually “normal” to the world. The law potentially is the literal cause of this mutation: one could attack gays without accountability by teaching that they were subhuman.54 In reality, gays had only two options: lie and commit to a never-ending masquerade of heterosexuality, or tell the truth and face ruin, jail, or asylum.55 II. Scalia’s Kulturkampf: Immorality to Sickness to Erasure. “The Court has mistaken a Kulturkampf for a fit of spite.”56 This was the first line in the dissent of Romer v. Evans57 by Justice Antonin Scalia. A Kulturkampf literally means “culture battle,” and this author will address this line in more detail below. However, the relevance at this point in historical evaluation is appropriate, as it is obvious that Justice Scalia did not believe such a culture war existed in that case—or ever. Conversely, quite the opposite is proven through the next few years of history creating the highest point of entanglement between disgust toward gays and an attempt at their extinction. World War II transformed the gender roles of America: sending women from the traditional kitchen-esque female duties to work, while the heterosexual men (or those                                                                                                                 52 Id. 53 Id. at 53. 54 Id. at 54. 55 Id. at 56.   56 Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting). 57 Id.
  • 11.   11   “masked”) fought overseas. Sadly this was short-lived, as once the war was over relaxation of gender roles were diminished again forcing gays back underground—aka “the closet.”58 However, this posed a threat to many Americans comparable to the Red Scare. 59 As a result, America began forcibly removing gays from the closet: an American Kulterkampf. In 1947 Herbert Hoover, former FBI director, announced that the highest increasing crime was that of sex offending and that such people, comparable to animals, were allowed to roam freely in America.60 Of course it didn’t take long for the press to inflate this claim, which not only re-gassed the fires of the child-molestation-homosexual correlation, but targeted the group responsible: homosexuals.61 Thus, between 1946 and 1961 criminal prosecutions on that premise resulted in approximately one million gays being incarcerated for simple things such as consensual adult intercourse, dancing, kissing, or holding hands.62 In 1948 the nation’s capital passed its first sodomy law 63 with sentencing enhancements deeming all homosexuals as “sexual psychopaths.”64 In 1953, Congress changed the law to allow police to peer into the private lives.65 Naturally, states piggybacked enacting similar statutes themselves. This was when the flushing of the proverbial closet reached full swirl. Imploring the same tactics as pre-World War I, police again became highly intrusive into the private lives of gays. Spying on gays often meant spending hours perched above                                                                                                                 58 Eskridge, supra note 5, at 2, 59. 59 Referring to the idea of communist invasion after World War II. 60 Eskridge, supra note 5, at 2, 60. 61 Id.   62 Id. 63 D.C. Code § 22-3502, 62 Stat. 347 (1948). 64 Eskridge, supra note 5, at 2, 60-61, see also Id. at (b). 65 D.C. Code, supra note 63, at 11.
  • 12.   12   public toilets, peeking into parked cars, and even following them and peering through their bedroom doors.66 The Kulturkampf rooted in disgust didn’t end here, but continued and while getting progressively worse. A. Nazi-Germany and Pre and Post-World War II on anti-homosexual regulation.67 In 1933, Adolf Hitler declared all homosexuals an enemy of the state as a threat to German youth, their morals, and reproduction.68 Congress enacted a similar statute 1950 but added national security risks to the list, which was reaffirmed by Eisenhower in 1953.69 In 1935, German sodomy law was expanded to include any sexual contact between two men, with higher penalties for sex with a minor, but never mentioned woman.70 In 1948, Congress adopted the same type of law with harsher penalties.71 In 1936, German criminal police established special units for detecting homosexuals and used raids to achieve group arrests; while by 1950 many states had similar squads in place and gay raids resulting in group arrests.72 In this same year—1936—the Reich Office for Combatting Homosexuality and Abortion was created as a clearinghouse for information about homosexuals; comparable to 1937 when the FBI collected similar information for dissemination to agencies and employers.73 In 1937, the Reich sentenced homosexual offenders to concentration camps and subjected them to medical experiments and treatments like castration. America’s                                                                                                                 66 Eskridge, supra note 5 at 2, 64. See, e.g. People v. Earl, 31 Cal. Rptr. 76 (Cal. Ct. App. 1963) [gay couple spied on by police peering through glass into motel room]. 67  This  in  no  way  is  to  minimize  the  horrific  and  grotesque  treatment  of  Jews  in  the  holocaust.   68 Id. at 80. 69 Id., citing Gunter Grau, eds., Hidden Holocaust? Gay and Lesbian Persecution in Germany, 1933-45.   70 Id. at 81. 71  Id.   72  Id.   73  Id.  
  • 13.   13   equivalent was after 1946, by sentencing gays to hospitals or special wards and subjected them to the same as the Reich, but the more common American experiments were electrical and pharmacological shock treatments and lobotomies.74 From 1942 to 1944, Wehrmacht High Command issued guidelines regarding homosexuality in the armed forces, and America did the same during the same period. However, American post-war guidelines increased the penalties for those caught as homosexual in the armed forces that were higher penalties then Wehrmacht had.75 The similarities are disturbing, and while America never conducted execution of homosexuals simply for being labeled such, it did conduct experiments. Terminology presents one key difference between Nazi Germany and America’s treatment of gays: Nazi’s goal was genocide, while America’s was a Kulturkampf by attempting erasure.76 B. Scientific influence on anti-homosexual regulation. In 1948, Alfred Kinsey published his report77 on sexual behavior in the human male, followed by a similar report78 on sexual behavior in the human female in 1953.79 Regarding his report on the human male, he recognized the social significance of homosexuality is “considerably emphasized by the fact that both Jewish and Christian churches have considered this aspect of human sexuality to be abnormal and immoral.”80 He acknowledged that “[s]ocial custom[s] and . . . law are sometimes very severe in                                                                                                                 74  Id.   75  Id.  at  82.   76 Id. 77 Alfred Kinsey, et al., Homosexual Outlet in Sexual behavior in the Human Male 610 (1948) 78 Alfred Kinsey, et al., Homosexual Responses and Contacts in Sexual behavior in the Human Female 446 (1953) (I am not addressing this article here as there were no additional information that would support or attack this paper’s thesis.). 79 William Rubenstein, Lesbian, Gay Men and the Law 1 (New York New Press eds., 1st ed. 1993). 80 Id.
  • 14.   14   penalizing one who is discovered to have had homosexual relations.”81 Punishments for being labeled gay in society caused him to analyze the aspect of homosexuality as a cause and effect hypothesis. He concluded that homosexuality was something imbedded deep in a person’s personality. He further acknowledged that humans forget that they are part of the animal kingdom and this required recognizing that having only two classifications for human males is an improper categorization. 82 This report played no role in the scientific community’s opinion however, as the religious and legal influences superseded his research. In 1952, the first Diagnostic Statistic and Mental Disorders Manual83 (hereinafter “DSM”) listed a number of diseases for diagnosis and treatment, and deemed homosexuality as a “psychopathology.”84 It was here where the legal and medical community’s almost seemed to merge, allowing “correction” therapies for homosexuality. Whether voluntary or involuntary, gays were legally powerless to protect themselves. Not surprisingly the legal and religious influence on DSM classifications worked its way into the case law in support for cases involving homosexuality. Such a case was Boutilier v. Immigration Services,85 a 6-3 decision, which deported a bisexual Canadian immigrant because homosexuality was deemed a “psychopathic personality.” This                                                                                                                 81 Id.   82 Kinsey, supra note 77, at 13. 83 See also, Donald H.J. Hermann, article, Legal Incorporation and Cinematic Reflections of Psychological Conceptions of Homosexuality,70 UMKC L. Rev. 495 (2002). (further discussion and analysis on the DSM beyond this article’s scope). 84 Yoshino, supra, note 43 at 7, 38. 85 Boutilier v. U.S., 387 U.S. 118 (1967).
  • 15.   15   decision ignored the dissent’s argument86 using Kinsey’s report conveying that it was impossible to define a person as a homosexual.87 This classification stayed in the DSM until the second re-printing of the DSM-II88 in 1973 where homosexuality was downgraded from a mental disorder to a sexual variant only.89 In a position statement written by Robert L. Spitzer, who was involved in nomenclature and statistics of the DSM, stated that by not removing the variant of homosexuality as an illness would be “misused by some people outside of our profession who wish to deny civil rights to homosexuals.”90 However, he warned that changing the variant will not recognize, medically speaking, that homosexuality would be as normal as heterosexuality.91 Specifically, he criticized that if we maintained homosexuality as a disease then we “have to add . . . celibacy, revolutionary behavior, religious fanaticism, racism, vegetarianism, and male chauvinism.”92 In a follow up Psychiatry Journal written by Spitzer on DSM-II, he recognized it was “inconsistent for homosexuality to be singled out as a mental disorder merely because of negative societal attitudes.”93 He acknowledged that a common trait in homosexuals—as a possible counter-argument for inclusion in the DSM—was “subjective distress or . . . associated with generalized impairment in social effectiveness of functioning.”94 This was mitigated by the fact that “homosexuality is not associated with distress . . .                                                                                                                 86 Dissenters were Douglas, Brennan, and Fortas. 87 Id. at 125-135. 88 First edition printed in 1968. 89 Robert Spitzer, The Diagnostic Status of Homosexuality in DSM-III: A Reformation of the Issues, Am. J. Psychiatry 138:2 (1981).   90 Robert L. Spitzer, Homosexuality and Sexual Orientation Disturbance: Proposed Change in DSM-II, 6th Printing, page 44, 730008 American Psychiatric Assoc. (1973). (can be found at: http://www.torahdec.org/Downloads/DSM-II_Homosexuality_Revision.pdf). 91 Id. at 3. 92 Id. at 2. 93 Spitzer, supra note 89, at 15. 94 Spitzer, supra note 90, at 15, 2.
  • 16.   16   [although] many claim that if there were no societal discrimination against homosexuality and no societal expectation of heterosexuality, homosexuals would never be distressed by their sexual orientation.”95 In the DSM-III, published in 1980, the definition changed again marking homosexuality as “ego-dystonic,” that is, classifying it as “other sexual disorders” including “distress about one’s sexual orientation.”96 The criticism against this diagnosis was (1) no comparable equal to a heterosexual distress disorder; and (2) consequences of being labeling homosexuality as an illness. Certainly, heterosexuals are frequently distressed by some aspects of their sexuality . . . there is not a single case . . . that describes an individual with a sustained pattern of heterosexual arousal who was distressed by being heterosexually aroused and wished to acquire homosexual arousal in order to initiate or maintain homosexual relationships . . . the inability of most heterosexuals to function homosexually puts them at no disadvantage except in extraordinary situations . . . [o]n the other hand, inability to function heterosexually has the built-in consequence of preventing, or at least interfering with, the ability to procreate—a matter that some judge to be not inconsequential.97 Although the illness/psychopathic disorder definition was removed from the DSM, this did not detour many from still classifying it as a problem. In the 1978 case of Ratchford v. Gay Lib, 98 Certiorari was denied where the University of Missouri denied recognition to Gay Lib because it would spread homosexuality, holding such denial unconstitutional. Justice Rehnquist in a dissenting opinion, concurred by Justice                                                                                                                 95 Id. 96 Am. Psychiatric Assoc., DSM-III, 296 (3rd ed. republished, 1980).   97 Spitzer, supra, note 89, at 15. 98 Ratchford v. Gay Lib.,434 U.S. 1080 (1978).
  • 17.   17   Blackmun, proposed that Certiorari should have been granted and classified the issue at hand as: [T]he question is more akin to whether those suffering from measles have a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles, in order to urge repeal of a state law providing that measle[sic] sufferers be quarantined.99 This misappropriation has been interpreted to mean “[g]ays were not citizens who could assemble with others to persuade them of their cause. They were lepers who would infect all they touched.”100 Additionally, the same Immigration and Naturalization Service that excluded Boutilier101 did not until 1990—17 years after the removal by the DSM—surrender the power to exclude homosexuals as psychopaths.102 It is incredulous that the legal community was not influenced by the trend of the medical progression on the opinion of homosexuality. However much the degree of influence, it bears acknowledging that this time period as a whole created a Kulturkampf that is still alive and well in today’s society. III. Gay is Good: Stonewall Riots of 1969 and the beginning of the rebellion and attempted liberation. On June 27, 1969, at Stonewall Inn in Greenwich Village located in New York City, a gay bar was visited by police officers with a warrant to—for all purposes—kick out the gays from the bar.103 In the beginning, they all complied, applauding and cheering for                                                                                                                 99 Id. at 1084. 100 Yoshino, supra note 34, at 7, 45.   101 Boutilier, supra note 85, at 14. 102 Id. at 41. 103 Symposium, Stonewall at 25, 29 Harv. C.R.-C.L. L. Rev. 277 (1993).
  • 18.   18   each other as they were forcibly removed from the bar.104 However, when drag queens and a lesbian were forced into a paddy wagon, it resulted in a riot. The crowd started throwing beer cans, bottles, and rocks at the police forcing them to take refuge in the same bar they just emptied.105 Inside they were subjected to cobblestones and trashcans filled with burning paper thrown into the Inn, and ultimately the Inn was set on fire.106 Gays around the country were tired of being treated worse than animals and the country took notice. Stonewall did not only open the preverbal closet door but started a national coming out of the closet event. “After Stonewall, lesbian and gay college groups grew like weeds in a vacant lot,”107 and “hundreds of new organizations formed, most notably GLF (Gay Liberation Front) and its successor GAA (Gay Activists Alliance)”. 108 In the area of literary censorship, new publications emerged, “many of these new publications were radical, advocating positions such as lesbian separatism (The Furies), free love (Gay), and gay political militancy (Gay Power). Community-centered newspapers, such as The Gay Blade in Washington, D.C., and the Bay Area Reporter in San Francisco, were established in this period identifying political points of contest.”109 Almost as a direct cause-and-effect, Hollywood’s censorship on movies was lifted, mostly noting their increased awareness of their gay audiences.110                                                                                                                 104 Id. 105 Id.   106  Id.   107  William  N.  Eskridge,  article,  Challenging  the  Apartheid  of  the  Closet:  Establishing  Conditions  for   Lesbian  and  Gay  Intimacy,  Nomos,  and  Citizenship,  1961-­‐1981,  25  Hofstra  L.  Rev.  817,  880  (1997).   108  Id.  at  875.   109  Id.  at  888.   110  Id.  at  898.  
  • 19.   19   Gays started to enter into politics, most notably with the story of Harvey Milk who moved from New York in 1972 to Castro Street in San Francisco.111 Initially opening a camera shop, he ran a total of three times for city supervisor, losing the first two attempts but winning the third in 1977.112 Unfortunately, his public office tenancy was cut short when he was assassinated in 1978.113 Not surprisingly, anti-homosexual campaigns surfaced alongside the now more vocal and open gays of society. One notoriously known anti-gay activist was Anita Bryant who zealously campaigned against the homosexual agenda for equal rights in Florida. With her “Save Our Children” campaign, she believed she was correctly rooted for protest through a power that God gave her in claiming homosexuality a sin and using a role model argument that was ultimately successful.114 Her successful influence swept across other states115 using the same belief system to pass similar laws.116 In 1986, the first gay rights case hit the Supreme Court, Bowers v. Hardwick. 117 Michael Bowers was charged with consenting same-sex sodomy—a felony—when police entered his private bedroom on a call for an alleged robbery. He was charged and sentenced where on appeal to the Supreme Court they held with a plurality that the charge and sentence would stand since no fundamental right was violated. The dissent argued that the decision should not have been issued for four principles: the right to be let                                                                                                                 111  PBS  Online,  Harvey  Milk,  Hero  and  Martyr,   http://www.kqed.org/w/hood/castro/resourceguide/harveymilk.html  (last  visited  May  12,  2012).   112  Id.   113 Id. 114 Michael England, Note, In Whose Best Interest? Florida’s Statutory Ban on Homosexual Adoption and the Arguments Set Forth in Support of an Absolute Ban, Represent the Perceived Best Interest of a Conservative Morality and Not Those of the Children, 9 Whittier J. Child & Fam. Advoc. 279, 287 (2010). 115 Other states that were influenced: Minn., Kan., Okla., Or. 116 Anthony E. Varona, Article, Setting the Record Straight: The Effects of the Employment Non- Discrimination Act of 1997 on the First and Fourteenth Amendment Rights of Gay and Lesbian Schoolteachers, 6 CommLaw Conspectus 25, 31 (1998). 117 Bowers v. Hardwick, 478 U.S. 186 (1986).
  • 20.   20   alone, violation of Equal Protection and cruel and unusual punishment, invasion of privacy under the Fourth Amendment, and that the religious purpose behind the law was not a valid state purpose.118 The dissent specified that the Court even had an almost “obsessive focus on homosexual activity” in the case, even though the statute was broadly written.119 It was not until years later in 2003, in Lawrence v. Texas, 120 did the Bowers decision get overturned creating a fundamental right to sexual intimacy in the privacy of one’s home, between two consenting adults. Although the decision does not discuss homosexuality specifically—discussed in more detail below—this does not mitigate the fact that homosexuals in America have been subjected to torturous, harassing, demeaning, offensive, animal-like, second-class citizenship treatment by the government. As was seen throughout the history presented, it is analogous to a bell that once it is rung the sound waves cannot be stopped. The federal government and Supreme Court has yet to rule that those discriminated based on sexual orientation are deserving of any more Equal Protection of the laws then Rational Basis. However when analyzing the treatment of the gay community through the history of America, it bears little argument that at a minimum the lowest standard under Equal Protection of Rational Basis is stupendously insufficient. LEGAL ANALYSIS AND ARGUMENT I. The Beginning of Equality: Ratification and Evolution of the 14th Amendment.                                                                                                                 118 Id. at 199-220.   119 Id. at 200. 120 Lawrence v. Texas, 539 U.S. 558 (2003).
  • 21.   21   The Fourteenth Amendment of the United States Constitution was initially proposed to the thirty-ninth session of Congress in 1866, immediately after the Civil War.121 Upon ratification and adoption by both houses, the beginning stages of Equal Protection had begun. Specifically—as this article is addressing—the following section was adopted: 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.122 The intent behind this Amendment could not be any clearer based on the timing of its enactment: racial equality. Other issues before Congress during this time were ones concerning the South’s property and considering the rights for the newly freed slaves.123 Thus, it is neither ironic nor surprising that the Constitutional Amendment was passed in furtherance of the goal of racial equality. Congressman John Bingham drafted the Fourteenth Amendment.124 He initially proffered a speech in the House of Representatives in May 1866 proposing this Constitutional Amendment. He recognized that “[t]he want of the republic to day[sic] is not a Democratic party, is not a Republican party . . . [but] equality of the States, and the equal rights of all people under the sanctions of inviolable law.”125 A preliminary interpretation of his statement suggests acknowledgment that political party affiliation meant nothing when it came to equal application of laws.                                                                                                                 121 USCS Const. Amend. 14, § 5.   122 USCS Const. Amend. 14 Sec. 1, emphasis added. 123 Eric Schnapper, article, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 Va L Rev 753 (1985). 124 See supra n. 122 at 21. 125 Cong. Globe, 39th Cong., 1st Sess. 2542 (1866).  
  • 22.   22   Although the Amendment’s purpose was more focused on equal rights for African Americans, the actual intent was clear: all Americans deserved equal treatment under the law. Bingham acknowledged that “[n]o state ever has the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws . . . although many of them have assumed and exercised the power, and that without remedy.”126 Even in 1866, states were violating the rights of the few in favor of the many. Sexual orientation is such a group that, as the history presented, has been oppressed and treated unequally since 1881. The Equal Protection Clause has in many ways come a long way since 1866. Many legal scholars have now interpreted the Equal Protection Clause to mean that all persons who are similarly situated to be treated alike.127 But, “[d]uring the first eighty years after its enactment however, the Supreme Court believed that the Fourteenth Amendment protected only racial and ethnic minorities.”128 Since then it has been expanded to include many other classes of individuals, standards of review, and enormous amounts of case law. The main principle emulating in the expansion was the belief that “the United States Constitution is a living document, designed for application to new circumstances upon a principled and historic yet realistic basis.”129 Sadly, we still have a long way to go. Since the Constitution is a document that changes with the times, it has been slow in protecting discrimination based on sexual orientation. The time is now to give those within this class equal treatment and basic rights the founding fathers imagined: the right to live.                                                                                                                 126 Id. 127 Plyler v. Doe, 457 U.S. 202, 216 (1982). 128 Gayle Lynn Pettinga, note, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 Ind. LJ 779 (1987).   129 Conrad v. Denver, 724 P.2d 1309, 1318 (Colo. 1986).
  • 23.   23   A. Equal Protection Evolution: In a nutshell.130 As previously stated, there was only one classification intended under the Equal Protection Clause: race. Currently, six classifications are given special treatment applying four different standards of review. Comporting with the concept that the Constitution is a living, always changing document, it is palpable that this clause can grow to include new classifications today. Currently the highest level of review is Strict Scrutiny for those denoted a Suspect class: race, national origin, and alienage. The quasi-high level of protection is Intermediate Scrutiny encompassing the quasi-Suspect classes of gender and illegitimacy. The lowest level of scrutiny is given Rational Basis and incorporates all other groups not otherwise protected. However, the Court has crafted out a special single-group classification that does not fall within any of the above classes: the woman’s right have an abortion. Different from the rest, abortion is a standard all by itself following an Undue Burden standard.131 One of the earliest cases specifically dealing with race was Strauder v. W. Va.,132 where an African American defendant brought a claim for violations under the Equal Protection Clause when the state did not allow black men to serve on juries. The Supreme Court viewed this as the direct purpose why the Equal Protection Clause was enacted, stating: At the time when [the Fourteenth Amendment was] incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race                                                                                                                 130 See also, John Marquez Lundin, article, Making Equal Protection Analysis Make Sense, 49 Syracuse L. Rev. 1191 (1999). 131 Casey, supra note 1, at 1.   132 Strauder v. W. Va., 100 U.S. 303 (1880).
  • 24.   24   would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual. It was well known that in some States laws making such discriminations then existed, and others might well be expected.133 The Court relied on the proposition that “it is necessary to look to the purpose which we have said was the pervading spirit of [the Fourteenth Amendment], the evil which [it was] designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accom plish[sic] it.”134 Even in 1880, the Supreme Court acknowledged that the Equal Protection Clause existed to remedy evils which society created against particular groups. The idea that the Equal Protection Clause was to offer protections against the “evils” that society produced did not take long to manifest to other areas. In the 1886 case of Yick Wo v. Hopkins, 135 Chinese laundromat owners were intentionally discriminated on by California solely because they were Chinese. The Court declared that they were denied Equal Protection based on a theory of alienage and nationality, and ultimately became entitled to a Suspect classification. Within a twenty-year period since the Amendment was adopted, the area of coverage and protections already began to grow beyond it’s intent. It is perplexing to believe that the Amendment cannot grow to include other minorities today. Gender-based classifications were added to the Equal Protection Clause in 1971,136 where the Court recognized that it was an impermissible discriminatory                                                                                                                 133 Id. at 306. 134 Slaughter-House Cases, 83 U.S. 36 (1872).     135 Yick Wo v. Hopkins, 118 U.S. 356 (1886). 136 Reed v. Reed, 404 U.S. 71 (1971).
  • 25.   25   classification, however only initially granting the class Rational Basis—the lowest standard. That standard was increased in 1976 in the case of Craig v. Boren137 declaring that Intermediate Scrutiny was appropriate. In Justice Stevens’ concurring opinion regarding the criticism of applying another standard, he stated: [The Equal Protection Clause] does not direct the courts to apply one standard of review in some cases and a different standard in other cases. Whatever criticism may be leveled at a judicial opinion implying that there are at least three such standards applies with the same force to a double standard.138 Illegitimacy was added to Intermediate Scrutiny in 1978 in the case of Lalli v. Lalli, 139 acknowledging that prior cases140 ruled this class for Equal Protection analysis should only receive Rational Basis. It was not until Lalli that the standard was heightened and added this class to the quasi-Suspect sister of gender. Non-Suspect classifications receive the lowest level of protections. Such classes include: age,141 sexual orientation,142 disability,143 wealth,144 poverty,145 and smoking. 146 Age is not entitled to higher protections since everyone gets old.147 Disability is not given higher status because the range of disability varies between people and those disabled have legislative oversight and political support.148 Wealth is not protected because discrimination due to wealth is for legislatures to control.149 Poverty—similar to                                                                                                                 137 Craig v. Boren, 429 U.S. 190 (1976). 138 Id. at 211-212. 139 Lalli v. Lalli, 439 U.S. 259 (1978). 140 Mathews v. Lucas, 427 U.S. 495; affm’d by Trimble v. Gordon, 430 US 762 (1977).   141 Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976). 142 Romer, supra note 56, at 10. 143 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985). 144 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). 145 Harris v. McRae, 448 U.S. 297 (1980). 146 N.Y. City C.L.A.S.H. v. N.Y. City, 315 F.Supp2d 461 (S.D.N.Y. 2004). 147 Murgia, supra note 141, at 25. 148 Cleburne, supra note 143, at 25. 149 Rodriguez, supra note 144, at 25.
  • 26.   26   wealth—is not entitled because just as one does not have a fundamental constitutional right to be rich, they don’t have an argument when they are indigent.150 Similarly, smoking is not entitled because it is considered to be a discretionary or voluntary act.151 Thus, based on the discrimination that has been perpetuated against those who classified themselves as gay or lesbian, it is bellicose to commit them to Rational Basis. Classes currently grouped with sexual orientation can change based on economy, medication, spending habits, even healthy lifestyle—while sexual orientation discrimination attacks one’s right to live their personal life because of the sex of another person—their partner. Abortion however went through a transformation as the Supreme Court considered it. In 1973, the legendary case of Roe v. Wade152 was initially decided holding it a non-Suspect level class, then on remand determining it a Suspect level class. It remained a Suspect level class until Casey v. Planned Parenthood153 in 1992 determining that giving abortion Strict Scrutiny was improper and thusly created a new standard not yet in existence: the Undue Burden standard. The creation, implementation, and application of this standard under the guise of Equal Protection created an interesting proposition: when a classification, due to government intrusion, deserves Equal Protection protections which does not fall into an already existing category, the Constitution allows a new standard to be made.154 This proposition is not only necessary—but also obligatory—to apply to sexual orientation                                                                                                                 150 McRae, supra note 145, at 25. 151 N.Y. City C.L.A.S.H., supra note 146, at 25.   152 Roe v. Wade, 410 U.S. 113 (1973). 153 Casey, supra, note 1, at 1. 154 See Id.  
  • 27.   27   discrimination in opposing the sound waves of disgust that it released throughout American history and still today. B. The Implementation of Fundamental Rights into Equal Protection? Another aspect to Equal Protection is the idea that you are only entitled to higher scrutiny if you have a fundamental right—Suspect class—or a somewhat fundamental right—quasi-Suspect class—being infringed. Textually speaking, nowhere in the Fourteenth Amendment does it state “fundamental rights” in the same line as “Equal Protection.” Those who construe the Constitution verbatim should recognize the idea of fundamental rights being correlated with Equal Protection as only being persuasive at best. Non-textually speaking, the fundamental right argument has become an integral part of the Equal Protection Clause. In 1970, evaluation of Equal Protection claims fell between two tests: “Under the so-called ‘traditional test,’ a classification is said to be permissible under the Equal Protection Clause unless it is ‘without any reasonable basis . . . [o]n the other hand, if the classification affects a ‘fundamental right,’ then the state interest in perpetuating the classification must be ‘compelling’ in order to be sustained.”155 There have been alternative arguments made by the Supreme Court against the strict black and white Equal Protection Clause analysis. It was argued that concentration must be focused on the character of the classification, the importance to the members of that class, and the states interests in support of making that classification.156 This                                                                                                                 155 Dandridge v. Williams, 397 U.S. 471, 519-520 (1970) (Marshall, J., Brennan, J., dissenting). 156 Id.  
  • 28.   28   article’s main goal is implementing this argument: the country’s need for a higher Equal Protection classification based on sexual orientation. Through the evolution of the Equal Protection Clause, we now know that quasi- Suspect classifications present the argument of “somewhat” fundamental rights needing protection. But that poses the question that unless it an enumerated fundamental right, who decides what is fundamental? It seems that the groups that fall within this somewhat fundamental right classification—and Suspect classifications—are subject to the court’s personal opinions, which has been criticized by members of the Supreme Court. [T]he Court’s insistence that Equal Protection analysis turns on the basis of a closed category of ‘fundamental rights’ involved a curious value judgment. It is certainly difficult to believe that a person whose very survival is at stake would be comforted by the knowledge that his ‘fundamental’ rights are preserved intact.157 Regardless of the issue whether “fundamental rights” should be a factor in Equal Protection discussions, it is noteworthy to state that the right to practice your sexual orientation is fundamental based on Lawrence. 158 This historic case did quite a few things—such as overturn Bowers159 —but more importantly Justice Kennedy created a fundamental right to private sexual intimacy, although applying it as a substantive due process violation. Never stating a fundamental right to be “gay,” Lawrence160 could be interpreted to mean a fundamental right to private consensual sexual intimacy no matter what sex or sexual orientation you are under the guise of the right to express sexuality.                                                                                                                 157 Id. at 530 n.14. 158 Lawrence, supra note 120, at 20. 159 Bowers, supra note 117, at 19. 160 Id.
  • 29.   29   The fact that Lawrence161 was not decided on Equal Protection grounds by the majority is irrelevant. The concept and application is the same whether one believes fundamental rights are relevant to Equal Protection analysis or not, as the same outcome occurs: if a fundamental right is present, higher Equal Protection protections are required. Denying a class of people higher protections that are clearly defined by two specific traits—sodomy and sex of one’s partner—is invalid discrimination under Lawrence since it created the right to private sexual intimacy.162 C. Equal Protection Classifications: Deconstructed. An analysis of the current classifications is required in determining whether a new classification for sexual orientation is warranted. This is to examine how the Court and Constitution allowed specific classes of individuals to be given higher protections, but also to address the arguments why sexual orientation does not fall within any current standards thusly requiring the adoption of the Modus Vivendi Nexus Standard. i. Suspect Classifications. To be considered a Suspect classification a class must pass a litmus test of qualifiers. Although none alone is dispositive in permitting the classification to attach, they each still bear equal weight. First, the group must have suffered a history of purposeful discrimination.163 Second, evidence of discrimination that represents a gross unfairness that is inconsistent with the principles of Equal Protection.164 This qualifier has a few sub-considerations a court considers: whether the class is defined by a trait that bears no relation to perform in society; whether the class is burdened with unique                                                                                                                 161  Lawrence, supra note 120, at 20.   162 Id.   163 Watkins v. U.S. Army, 847 F.2d 1329, 1345 (9th Cir. 1988). 164 Id. at 1346.
  • 30.   30   disabilities because of prejudice or inaccurate stereotypes; and whether the trait defining the class is immutable.165 The last consideration is whether the class is a discrete and insular minority that is politically powerless and underrepresented.166 Many federal courts—but not the U.S. Supreme Court—acknowledge that gays have been subjected to discrimination.167 However, regardless of the unacknowledgment by the Supreme Court, it is undeniable that gays—as a class—has been the target of many hateful and discriminatory attacks since 1881. When discussing whether the sexuality of an individual attributes to their performance in society, it is relevant when one is deemed “gay” by society because sexual orientation discrimination has been long ingrained in American history.168 Likewise, when discussing whether the sexual orientation of an individual is a unique disability that is prejudicial or inaccurate, views such as that gays proselytize children, or seek out children to molest, or are mentally ill or sick have been found to be incredibly inaccurate or false and result in prejudicial treatment.169 However, when discussing the qualifier of gross unfairness, the most critical factor has found to be whether the trait is immutable—unchangeable. This however is slightly more complicated in analysis then the other qualifiers. For example, with illegitimacy based classifications, Court’s felt it was “unjust” to condemn the child born out of wedlock who was in no way responsible for the situation and more importantly                                                                                                                 165 Id. 166 Id. at 1348. 167 E.g., Id. at 1345, reversed by rehearing, 875 F.2d 699;High Tech Gays v. Defense, 895 F.2d 563, 573 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 465 (7th Cir. 1989) (all holding homosexuals were subject to a history of discrimination).   168 Jantz v. Muci, 759 F. Supp. 143, 1549 (Kan. 1991). (revs’d and remanded on basis of qualified immunity) (citing 57 S. Cal. L. Rev. at 825-27). 169 Id.
  • 31.   31   unable to change that status.170 Distinguishably, courts have declared that homosexuality is not immutable because it “is behavioral and hence fundamentally different from traits such as race, gender, or alienage.”171 However, although homosexuality does involve conduct that defines the class, the same can be said for gender—masculine or feminine conduct—and alienage—the actions of seeking residency in America. However, it seems that for homosexuality to be deemed purely immutable it will require that the characteristic is not “individual responsibility” but something more innate.172 , 173 Although this ignores the fact that it is similar to illegitimacy because society labels the individual as gay and it is difficult to change that status. Regardless, all attempts thus far arguing for immutability with homosexuality have failed. Finally, when discussing political powerlessness, there is a divide between courts whether gays lack political power. Some courts ruled that “[i]t is beyond doubt that the homosexual community has been able to reach out and gain the attention of politicians of all sorts,” 174 while other jurisdictions have believed the opposite. There are several factors which limit effective political action by homosexuals. Due to the harsh penalties imposed by society on persons identified as homosexual, many homosexual persons conceal their sexual orientation. Silence, however, has its cost. It may allow a given individual to escape from the discrimination, abuse, and even violence which is often directed at homosexuals, but it                                                                                                                 170 Parham v. Hughes, 441 U.S. 347, 352 (1979). 171 High Tech Gays, supra note 167, at 30, 573; E.g.. Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996); Watkins, supra note 163, at 29. 172 Frontiero v. Richardson, 411 U.S. 677, 686 (1973). 173 However, recent research may suggest genetic. See also, Dean Hamer, et al, A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation, 261 Science 321-27 (1993); Hamer & Copeland, The Science of Desire: The Search for the Gay Gene and the Biology of Behavior, (1994). Eskridge & Hunter, Sexuality, Gender, and the Law, 99, stating “the National Cancer Institute of the National Institutes of Health (NIH), claimed to have found on the X chromosome (X28, to be precise) where a “gay gene” would likely be found.” 174 Steffan v. Cheney, 780 F. Supp 1, 8 (U.S.D.C, D.C. 1991); See also, High Tech Gays, supra note 167, at 30 (anti-discrimination laws prove no politically powerlessness).
  • 32.   32   ensures that homosexuals as a group are unheard politically. Moreover, the prejudice that compels many homosexuals to refrain from open political activity also limits access to political power in other ways. By diminishing contact between the heterosexual majority and avowed homosexuals, the majority loses any perspective on concerns in the homosexual community and is deprived of the resulting sensitivity to those concerns.175 Although in 1985, Justice Brennan acknowledged the political powerlessness of gays. [H]omosexuals constitute a significant and insular minority of this country's population [and] [b]ecause of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena.176 Thus, courts struggle in determining whether the use of the judicial system by the gay community means that they lack political power. On one hand the argument shows that the gay community has become more vocal in equality but at the same time rarely having any successful outcomes. There have been attempts at convincing courts that sexual orientation deserves Suspect classification protections by litigating all the qualifiers discussed above. Unfortunately, all attempts resulted in non-Suspect-Rational Basis status. One argument against awarding this higher classification focused at the failure to identify whether sexual orientation was conduct-based or status-based.177 ,178 Another argument refused to                                                                                                                 175 Jantz, supra note 168, at 30. 176 Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009, 1014 (1985) (Brennan, J., Marshall, J., dissenting).   177 Ben-Shalom, supra note 167 at 30, 465-466 (declared as suspect class, then on appeal revs’d declaring non-suspect class). 178 This author argues that practicing sexual orientation is conduct based. However society and courts have labeled this conduct as “gay” or “queer” causing the conduct to produce a status in society of a lesser being, thus making the issue of whether homosexuality is conduct or status based irrelevant.
  • 33.   33   declare homosexuality a Suspect class because no other higher court had ever declared it entitled to be given a higher standard.179 The famous Supreme Court decision of Romer v. Evans, overturning an anti-gay Colorado Constitutional Amendment, failed to recognize (by omission) the argument that gays deserved Suspect class status.180 This decision was used as support in another case using Romer as persuasive precedent for Suspect classification based on omission. However the court refused to read Romer that liberally since the Supreme Court was mute on the topic.181 There additionally have been attempts by comparing homosexuality to race, which also failed. “[I]t would not pass even Rational Basis review for the military to reject service members because of characteristics—such as race or religion or the lack of inherited wealth—that have absolutely no bearing on their military service. Homosexuality, by contrast, is not irrelevant to homosexual conduct.”182 Unfortunately, due to many personal and ideological biases in society, Suspect classification for homosexuality may be a misnomer for quite some time. Not only do political perceptions have to change but also evidence of a stronger stance of political powerlessness. Even more trying is proving being gay is not a choice—thus immutable. Although society has come a long way in changing their views on homosexuality 183 discrimination based on it it is alive and well. These views are difficult to change and                                                                                                                 179 Watkins, supra note 163, at 29, 722. 180 Romer, supra note 56, at 10. 181 Cook v. Gates, 528 F.3d. 42, 61 (1st Cir. 2008). 182 Steffan v. Perry, 41 F.3d 677, 689 (D.C. Cir. 1994). See also Darren Lenard Hutchinson, article, Ignoring the Sexualization of Race: Heteronormativity, Critical Race Theory and Anti-Racist Politics, 47 Buffalo L. Rev. 1 (1999); , Francisco Valdes, article, Intersections of Race, Ethnicity, Class, Gender & Sexual Orientation: Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory, and Politics of "Sexual Orientation ", 48 Hastings L.J. 1293 (1997). 183 Boy Scouts of Am. v. Dale, 530 U.S. 640, 700-701 (2000) (Souter, J., Ginsburg, J., Breyer, J., dissenting).
  • 34.   34   until the day that courts are willing to accept new views on homosexuality, Suspect classification may be far off in the distance. ii. Quasi-Suspect Classification. This classification was not intended under the original Equal Protection Clause. Comparable to the Undue Burden standard, discussed below, the Supreme Court created this standard because of the proposition that when it comes to Equal Protection everything isn’t black and white.184 Constitutionally speaking it does not require that things that are different in fact or opinion to be treated the same.185 It was this principle that the Court utilized in Plyler v. Doe. 186 There the Court acknowledged “we would not be faithful to our obligations under the Fourteenth Amendment if we applied to deferential a standard [Rational Basis] to every classification.”187 It was discussed that Intermediate Scrutiny permitted the Court to evaluate the rationality of legislative judgment based in constitutional principles, and in utilization, gave the Court the ability to discern and over time lift state created absolutes above the level of pragmatic political judgments of a specific time and place.188 The holding in Plyler referred to other cases adopting Intermediate Scrutiny for quasi-Suspect classifications. One case was Craig v. Boren that created a higher age of majority for males to buy liquor then their female equals, holding that sex-based classifications were subject to quasi-Suspect status.189 Using precedent that used Rational Basis for such a classification, the Court increased protections for gender                                                                                                                 184 Tigner v. Tex., 310 U.S. 141, 147 (1940). 185 Id. 186 Plyler, supra note 127, at 22, 216. 187 Id. 188 Id. at 218 n.16.   189 Boren, supra note 137, at 25.
  • 35.   35   without much explanation. However, the Court did note the historical problems with sex stereotyping in Equal Protection issues, “archaic and overbroad generalizations . . . could not justify use of a gender line in determining eligibility for government entitlements.”190 An argument can be made that sexual orientation is similar in regard to the principle adopted in imploring an increased classification based on gender. Just as gender was increased in adopting “archaic and overbroad” generalizations, such can be the same said for homosexuality. The other case that increased a class to quasi-Suspect status is Lalli v. Lalli, 191 with illegitimacy. There the Court stated that Strict Scrutiny was the proper level of review but the Court used Intermediate Scrutiny language in determining the constitutionality of the statute. Although the statute was held to withstand constitutional muster it nonetheless pushed this classification to a higher standard of quasi-Suspect status. It is perplexing that sexual orientation has never at a minimum been granted quasi-Suspect classification. The arguments have been made and the lower courts have adopted those higher protections initially. However, on appeal, the higher federal courts consistently disagreed and removed those higher protections. Before Lawrence192 decriminalized the idea of sodomy, many cases ruled that sexual orientation was not worthy of receiving a higher standard of protection because of the criminal acts committed by that group.193 Of course now having a fundamental right to engage in sexual relations between consenting adults without government intrusion,                                                                                                                 190 Id. at 198.   191 Lalli, supra note 139, at 25. 192 Lawrence, supra note 120, at 20. 193 See Ben-Shalom, supra note 167, at 30.
  • 36.   36   that is no longer a valid argument. However, imaginative and innovative anti-gay arguments still preclude the class from gaining any additional protection. In Equality Found. v. City of Cincinnati, the Southern District of Ohio determined that “sexual orientation is a quasi-Suspect[sic] classification.”194 In holding, the court even stated, “we conclude that homo-, hetero-, and bisexual orientation is a characteristic beyond the control of the individual.”195 It was that exact reason why on appeal to the 6th Circuit, the decision was reversed. Assuming arguendo the truth of the scientific theory that sexual orientation is a "characteristic beyond the control of the individual" as found by the trial court . . . the reality remains that no law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics such as innate desires, drives, and thoughts. Those persons having a homosexual "orientation" simply do not, as such, comprise an identifiable class.196 In High Tech Gays197 , the argument for a higher standard was made as well. But the court’s reasoning was based upon similar principles portrayed in Equality Found. with further explanations in denying granting those protections. While we do agree that homosexuals have suffered a history of discrimination, we do not believe that they meet the other criteria. Homosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes. The behavior or conduct of such already recognized classes is[sic] irrelevant to their identification. Moreover, legislatures have addressed and continue to address the discrimination suffered by homosexuals on account of their sexual orientation through the passage of                                                                                                                 194 Equality Found. v. City of Cincinnati, 860 F. Supp. 417, 436 (U.S.D.C., S.D.OH 1994). 195 Id. at 437. 196 Id. on appeal, 54 F.3d 261, 267 (6th Cir. 1995). 197 High Tech Gays, supra note 167, at 30.
  • 37.   37   anti-discrimination legislation. Thus, homosexuals are not without political power; they have the ability to and do "attract the attention of the lawmakers," as evidenced by such legislation.198 It seems that the argument against quasi-Suspect status is the same as Suspect status: immutability. Focus on this particular qualifier overshadows the two considerations of gross unfairness relating to inaccurate or prejudicial stereotypes and trait bears no relation to performance in society. Further evaluation of these two qualifiers would dictate that many of the stereotypes relating to homosexuality could be factually challenged, including the whether being gay effects performance in society. As can be seen from the arguments and decisions, courts have been reluctant to add sexual orientation with the other classes already receiving higher protections. This does not mean that sexual orientation discrimination does not deserve higher protection— as arguendo, High Tech Gays acknowledges—but one proper classification and standard does not yet exist to effectuate sufficient protections, until the Modus Vivendi Nexus Standard. iii. The “Undue Burden” Standard. The creation and application of the Undue Burden standard highly supports the proposition that court’s can and will create new standards when the right case and argument is presented. This standard stands alone from its Equal Protection sister standards, and specifically addresses women right to choose to have an abortion. In 1973, Roe v. Wade199 made headlines as the Supreme Court decision that granted abortion Strict Scrutiny protection. Originally, abortion was Rational Basis but                                                                                                                 198 Id. at 573-574.   199  Roe, supra note 152, at 26. (see decision for more information).  
  • 38.   38   then increased to Strict Scrutiny by the Supreme Court based on personal privacy. “[O]nly personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty, are included in this guarantee of personal privacy.’”200 The Court noted this right to privacy, found either in the Fourteenth or Ninth Amendment, and was broad enough to include the woman’s right to choose to terminate her pregnancy.201 Then in 1992, in Planned Parenthood v. Casey, 202 the Supreme Court removed Strict Scrutiny as the proper standard to apply in abortion cases and created the Undue Burden standard. Justice O’Connor delivered the opinion of the Court and many of the same arguments can be argued in support for higher protections for discrimination based on sexual orientation. Constitutional protections supporting the woman’s right to choose came from the Due Process Clause of the Fifth Amendment, that “no State shall deprive any person of life, liberty[,] or property, without due process of the law.”203 “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before.”204 This is comparable to sexual orientation. For those that believe being gay is a choice—as this article implores it is not—must concede that the woman’s right to terminate a pregnancy is just as much as a choice. For those who argue being gay is not a choice, the argument is still valid as providing evidence supporting an argument for depravation of life under the Fifth Amendment in discriminating based on sexual orientation.                                                                                                                 200 Id. at 152. 201 Id. at 153.   202 Casey, supra note 1, at 1. 203 Id. at 846. 204 Id. at 847.  
  • 39.   39   Next in addressing the comparison to the morality and spiritual arguments between sexual orientation and Equal Protection in relation to abortion, similar issues were presented for abortion and are equally applicable to sexual orientation. Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.205 It is well known that many see abortion as an evil undertaking while others support the woman’s right to choose. Similarly, it is well known that many confer sexual orientation to be a sin and morally wrong while others disagree. Additionally, many have personal moral objections to abortion—but nonetheless abortion is still allowed. Conversely, it is known that personal moral objections to homosexuality are present in society but nonetheless homosexuality is still allowed. Furthermore, Justice O’Connor’s view is that a state cannot compel one position over another when there are two competing positions. Specifically, a state cannot offend a personal liberty of a person. [C]hoices central to personal dignity and autonomy are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.206 Undistinguishable is the analogous nature of the above statement with sexual orientation. Those who identify as gay would argue it is a central component of their                                                                                                                 205 Id. at 850. 206 Id. at 851.
  • 40.   40   dignity and life. It defines an entire group, and to this point, the government has either attempted to or conjured ways to prohibit the gay community from having similar personal freedoms as were described for abortion. But yet the arguments made for the woman’s right to choose passed constitutional scrutiny by the Supreme Court while the same application to sexual orientation does not even get out of Rational Basis. It is important to know that the Undue Burden standard is the following: “the right of the woman to choose to have an abortion before viability and to obtain it with undue influence from the State.”207 Obviously the right to have an abortion is not absolute, that is, the state can regulate abortion after viability.208 Thus, this author’s argument for the Standard aligns with this type of standard created in the Roe and Casey progeny. It is also important to recognize how Casey209 interpreted the standards from Roe.210 “While [Roe] has engendered disapproval, it has not been unworkable.”211 It is obvious that the proposed standard is subject to scrutiny, disapproval, or even disgust— but that alone does not make this standard unadoptable or any less applicable currently. Time’s change, views change, and the Constitution changes with it. The majority in Casey acknowledges this by the evolution of segregation and education. “Society's understanding of the facts upon which a constitutional ruling was sought in 1954 [separate but not equal212 ] was thus fundamentally different from the basis claimed for the decision in 1896 [separate but equal213 ].”214 The factual underpinnings of the 1896                                                                                                                 207 Id. at 846. 208 See also, Janeen F. Berkowitz, article, Supreme Court Law: Stenberg v. Carhart: Woman Retain their Right to Choose, 91 J. Crim. L. & Criminology 337 (2001). 209 Casey, supra note 1, at 1. 210 Roe, supra note 152, at 26. 211 Casey, supra note 1, at 1, 860.   212 Brown v. Bd. of Educ., 347 U.S. 483 (1954).   213 Plessy v. Ferguson, 163 U.S. 537 (1896). 214 Casey, supra note 1, at 1, 863.
  • 41.   41   decision were so at odds to the Court in 1954 that “the decision to reexamine . . . was on this ground alone not only justified but required.”215 Similarly, the attitude of the country has significantly changed since the late 1800’s. There has been more fighting by the gay community for equality. One can say the opinion of courts, and Supreme Court, has significantly changed acknowledging the plight of the homosexual community through decisions such as Romer 216 and Lawrence.217 The most important, constitutionally sound, and historically accurate legal argument made in the Casey decision in support of adopting the Undue Burden standard this author believes applies to this article’s main premise is: [w]here, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution [emphasis added].218 It is uncontested that rights surrounding homosexuality are presently in national controversy and have been for quite some time. Nationwide divisions have been created resulting from the fight of equality and right to live one’s life. As Justice O’Connor argued, it is not the place of the Court to pick sides but to interpret the Constitution and to apply its principles to present day opinions—just like they did with education and segregation.                                                                                                                 215 Id. 216 Romer, supra note 56, at 10. 217 Lawrence, supra note 120, at 20. 218 Casey, supra note 1, at 1, 866-867.  
  • 42.   42   Thus, Equal Protection must afford protections in one’s sexual orientation, as it is either a personal choice—like abortion—or not a personal choice—like race or illegitimacy. Since sexual orientation has not been afforded protections anywhere else in the Equal Protection Clause and courts are unwilling to provide higher protections greater than Rational Basis, then there must be a separately crafted standard similar to Undue Burden—The Modus Vivendi Nexus Standard. Too many courts have been at odds with one another—including the Supreme Court—with the idea of sexual orientation and Equal Protection. This author seeks the adoption of the Modus Vivendi Nexus Standard for sexual orientation moving the national controversy monumentally forward in furthering full equality as the Constitution demands. II. Modus Vivendi Nexus Standard: The New Undue Burden. Equal Protection to this day has yet to encompass proper protections for those who are discriminated based on sexual orientation. While no higher standard has been adopted, legal scholars and courts have been at odds with one another fighting for both sides of the cause. The Modus Vivendi Nexus Standard presents a middle ground. This Standard states that neither the state nor government can intrude on, or discriminate on the basis of, one’s sexual orientation, unless there is a direct nexus to important governmental interests in identifying one’s sexual orientation and those interests are narrowly tailored to that nexus. A. Modus Vivendi.
  • 43.   43   This Latin phrase has been used in the legal world before but in different context. The English translation is “[a] method of living.”219 While in the legal world, it was more often used to refer “to a central principle in a field of law.”220 Thus, it is this purpose why this author proposes that the Standard be labeled and called Modus Vivendi Nexus Standard, as it specifically guards against state and government intrusion into one’s “method of living.” There has been significant discrimination against those of the gay community as the history portion of this article has pointed out. Admittedly, there have been great strides in the area of gay rights law since 1881. Under the current Equal Protection Clause, sexual orientation only gets protection when there is no Rational Basis in the interests being sought. However this offers minimal protections since it is a rare case that a state or federal statute would not be held to have a Rational Basis in a valid state interest. By adopting this Standard it will mean protecting those discriminated based on sexual orientation because of their “method of living.” The right for anyone in America to live his or her life without state or federal interference was intended with the original adoption of the Equal Protection Clause, just specifically targeting African Americans at that time. There have been many declarations by the country over the course of time recognizing the importance of self-preservation (racial, ethnicity, women’s liberation, religion, abortion, etc.). It is now the time that America realizes that after one hundred,                                                                                                                 219 Russ Versteeg, Essential Latin for Lawyers, 144 (1990). 220 Id.  
  • 44.   44   thirty-one years of documented homophobic and anti-gay treatment is enough: it is time to let all American’s live their life. B. Fundamental Rights and Sexual Orientation. As previously discussed, there have been debates whether courts have properly interpreted the Equal Protection Clause to include fundamental rights in Equal Protection analysis. This author urges recognition that under either argument, the right of practicing one’s sexual orientation is a classification worthy of higher protections. Lawrence221 argued for such a proposition indirectly. Although Lawrence222 specifically dealt with criminalization of sodomy that ultimately produced the fundamental right of sexual intimacy between two consenting adults, the inferences from the Court’s reasoning requires a deeper analysis. Not only did Lawrence prevent government intrusion into the bedroom, but also removed government regulation on a defining characteristic of homosexuality.223 A possible interpretation of this decision is that a creation of a fundamental right to practice your sexual orientation was inadvertently created. However for those who do not read Lawrence224 as liberally, the argument is still valid. It would offend common sense to argue that America has not been aggressively discriminative towards the gay community. It cannot be ignored that the Equal Protection Clause never stated anything about a fundamental right in correlation to being                                                                                                                 221 Lawrence, supra note 120, at 20. 222 Id. 223 This author takes note that sex between two females may or may not involve sodomy. However, the argument is not diluted because the act of two women having sex is defining conduct similar to gay male sex, leading to the status of being “gay.” 224 Id.
  • 45.   45   granted equal protections. Therefore, it comes to a simple issue: whether fundamental rights are important in awarding Equal Protection protections. If so, then a fundamental right exists under Lawrence225 as was discussed. If not, then the argument for the Standard does not fail since sufficient evidence is presented supporting the need for additional protections higher than Rational Basis. As was argued in Casey226 by Justice O’Connor and many other cases, 227 the right to personal autonomy and concept of existence is held at the highest regard under the Constitution. Thus, sexual orientation is a classification falling under this same theory. Minimally, sexual orientation deserves higher protections then it currently receives— Rational Basis—irrespective of the belief that a fundamental right is required to be granted higher protections. C. Modus Vivendi Nexus Standard: Deconstructed. The entire Standard is: neither the state nor government can intrude on, or discriminate on the basis of, a person’s sexual orientation, unless there is a direct nexus to important governmental interests in identifying one’s sexual orientation and those objectives are narrowly tailored to that nexus. Analyzing the components of the proposed Standard is necessary to show how this Standard achieves the objective of higher rights for sexual orientation discrimination. By doing so, the Standard will be placed between Intermediate Scrutiny and Strict Scrutiny, with the burden of proof on the state.                                                                                                                 225  Id.   226 Casey, supra note 1, at 1. 227 See Skinner v. Okla., 316 U.S. 535 (1942) [discussing right to procreate]; Griswold v. Conn., 381 U.S. 479 (1965) [discussing right to martial intimacy]; Lawrence, supra, note 116, at 21 [discussing right to private sexual intimacy]; Zablocki v. Redhail, 434 U.S. 374 (1978) [discussing right to marry]; Jacobson v. Mass., 197 U.S. 11 (1905) [discussing right to refuse medical treatment]; Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990) [discussing right to refuse life-saving medical treatment].  
  • 46.   46   The Modus Vivendi Standard was created with the understanding that there has been an acknowledged history of purposeful discrimination that cannot be denied by any party. There has been a gross unfairness against the homosexual community that bears no relation to production in society. These statements are supported strongly by the history portion of this article. The biggest criticisms, addressed in section C of this article are politically powerlessness and immutability. With these in mind, the author believes that this Standard properly takes these into account for a lower standard than Strict Scrutiny; however, enough evidence has been presented to argue for a higher standard than Intermediate Scrutiny, or at a minimum, higher than Rational Basis. i. Nexus and Important Governmental Objective. A nexus has been used by the Court in analyzing a number of issues that have been presented on constitutional violations. For example, federal taxpayer standing has used a nexus in showing “a logical link between that status and the type of legislative enactment attacked.”228 In the area of Equal Protection, it has been discussed in the area of fundamental rights with a non-enumerated liberty, saying [t]he task in every case should be to determine the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution. As the nexus between the specific constitutional guarantee and the nonconstitutional[sic] interest draws closer, the nonconstitutional[sic] interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly.229                                                                                                                 228 Flast v. Cohen, 392 U.S. 83, 102 (1968). 229 Rodriguez, supra note 144, at 25, 102-103 (Marshall, J., Douglas, J., dissenting).