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            Bowers
v. Hardwick (1986)  Ruled that same-sex
            partners are not  included in the
            "zone of privacy" that protects
            heterosexual couples 
          
        
          The
          Constitution does not confer a fundamental right
          upon homosexuals to engage in sodomy. None of the
          fundamental rights announced in this Court's prior
          cases involving family relationships, marriage, or
          procreation bear any resemblance to the right
          asserted in this case. And any claim that those
          cases stand for the proposition that any kind of
          private sexual conduct between consenting adults
          is constitutionally insulated from state
          proscription is unsupportable. -Justice Byron
          White 
            
          This
          case is no more about "a fundamental right to
          engage in homosexual sodomy," as the Court
          purports to declare, ante, at 191, than Stanley v.
          Georgia, 394
          U.S. 557 (1969), was about a fundamental right
          to watch obscene movies, or Katz v. United States,
          389
          U.S. 347 (1967), was about a fundamental right
          to place interstate bets from a telephone booth.
          Rather, this case is about "the most
          comprehensive of rights and the right most valued
          by civilized men," namely, "the right to
          be let alone." Olmstead v. United States, 277
          U.S. 438, 478 (1928) (Brandeis, J., dissenting) - JUSTICE BLACKMUN,
          with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join,
          dissenting. 
         History
  of Gay Rights in the U.S. 
  
  
          
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  1. A claim of "hostile environment" sexual harassment is a form of
  sex discrimination that is actionable under Title VII. Pp. 63-69.
 
  (a) The language of Title VII is not limited to "economic" or
  "tangible" discrimination. Equal Employment Opportunity Commission
  Guidelines fully support the view that sexual harassment leading to [477
  U.S. 57, 58]   non-economic injury can violate Title VII.
  Here, respondent's allegations were sufficient to state a claim for
  "hostile environment" sexual harassment. Pp. 63-67.
 
  (b) The District Court's findings were insufficient to dispose of respondent's
  "hostile environment" claim. The District Court apparently
  erroneously believed that a sexual harassment claim will not lie absent an
  economic effect on the complainant's employment, and erroneously focused on
  the "voluntariness" of respondent's participation in the claimed
  sexual episodes. The correct inquiry is whether respondent by her conduct
  indicated that the alleged sexual advances were unwelcome, not whether her
  participation in them was voluntary. Pp. 67-68.
 
  (c) The District Court did not err in admitting evidence of respondent's
  sexually provocative speech and dress. While "voluntariness" in the
  sense of consent is no defense to a sexual harassment claim, it does not
  follow that such evidence is irrelevant as a matter of law in determining
  whether the complainant found particular sexual advances unwelcome. Pp. 68-69.
 
  2. The Court of Appeals erred in concluding that employers are always
  automatically liable for sexual harassment by their supervisors. While
  common-law agency principles may not be transferable in all their particulars
  to Title VII, Congress' decision to define "employer" to include any
  "agent" of an employer evinces an intent to place some limits on the
  acts of employees for which employers under Title VII are to be held
  responsible. In this case, however, the mere existence of a grievance
  procedure in the bank and the bank's policy against discrimination, coupled
  with respondent's failure to invoke that procedure, do not necessarily
  insulate the bank from liability. Pp. 69-73.
 
  ...In
  sum, we hold that a claim of "hostile environment" sex
  discrimination is actionable under Title VII, that the District Court's
  findings were insufficient to dispose of respondent's hostile environment
  claim, and that the District Court did not err in admitting testimony about
  respondent's sexually provocative speech and dress. As to employer liability,
  we conclude that the Court of Appeals was wrong to entirely disregard agency
  principles and impose absolute liability on employers for the acts of their
  supervisors, regardless of the circumstances of a particular case. 
  --Justice REHNQUIST 
    
  A
  supervisor's responsibilities do not begin and end with the power to hire,
  fire, and discipline employees, or with the power to recommend such actions.
  Rather, a supervisor is charged with the day-to-day supervision of the work
  environment and with ensuring a safe, productive workplace. There is no reason
  why abuse of the latter authority should have different consequences than
  abuse of the former. In both cases it is the authority 
	[477
  U.S. 57, 77]   vested in the supervisor by the employer
  that enables him to commit the wrong: it is precisely because the supervisor
  is understood to be clothed with the employer's authority that he is able to
  impose unwelcome sexual conduct on subordinates. There is therefore no
  justification for a special rule, to be applied only in "hostile
  environment" cases, that sexual harassment does not create employer
  liability until the employee suffering the discrimination notifies other
  supervisors. No such requirement appears in the statute, and no such
  requirement can coherently be drawn from the law of agency. --Justice Stevens,
  concurring 
    
                    
  Sexual
  Harassment
   
  
   
                 
  
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  Held: 
  The Equal Protection Clause prohibits discrimination in jury
  selection on the basis of gender, or on the assumption that an individual will
  be biased in a particular case solely because that person happens to be a
  woman or a man. Respondent's gender-based peremptory challenges cannot survive
  the heightened equal protection scrutiny that this Court affords distinctions
  based on gender. Respondent's rationale - that its decision to strike
  virtually all males in this case may reasonably have been based on the
  perception, supported by history, that men otherwise totally qualified to
  serve as jurors might be more sympathetic and receptive to the arguments of a
  man charged in a paternity action, while women equally qualified might be more
  sympathetic and receptive to the arguments of the child's mother - is
  virtually unsupported and is based on the very stereotypes the law condemns. 
  -- Justice Blackmun 
    
  We know that, like race, gender matters...one need not be a sexist to share
  the intuition that, in certain cases, a person's gender and resulting life
  experience will be relevant to his or her view of the case. "`Jurors are
  not expected to come into the jury box and leave behind all that their human
  experience has taught them.'" Beck v. Alabama, 447
  U.S. 625, 642 (1980). Individuals are not expected to ignore as jurors
  what they know as men - or women.
   Today's decision severely limits a litigant's ability to act on this
  intuition, for the import of our holding is that any correlation between a
  juror's gender and attitudes is irrelevant as a matter of constitutional law.
  But to say that gender makes no difference as a matter of law is not to say
  that gender makes no difference as a matter of fact. I previously have said
  with regard to Batson: "That the Court will not tolerate prosecutors'
  racially discriminatory use of the peremptory challenge, in effect, is a
  special rule of relevance, a statement about what this Nation stands for,
  rather than a statement of fact. Brown v. North Carolina, 479
  U.S. 940, 941 -942 (1986) (O'CONNOR, J., concurring in denial of
  certiorari). Today's decision is a statement that, in an effort to eliminate
  the potential discriminatory use of the peremptory, see Batson, 476
  U.S., at 102 (Marshall, J., concurring), gender is now governed by the
  special rule of relevance formerly reserved for race. Though we gain much from
  this statement, we cannot ignore what we lose. In extending Batson to gender,
  we have added an additional burden to the state and federal trial process,
  taken a step closer to eliminating the peremptory challenge, and diminished
  the ability of litigants to act on sometimes accurate gender-based assumptions
  about juror attitudes. --Justice O'Connor, concurring 
   
	 Gender
  and Law in American History
   
  
   
 
  
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	Romer
v. Evans (1996) Struck
  down “special treatment” statutes aimed at gays and lesbians.
  	 The Fourteenth Amendment's promise that no person shall be denied the equal
  protection of the laws must co-exist with the practical necessity that most
  legislation classifies for one purpose or another, with resulting disadvantage
  to various groups or persons...We have attempted to reconcile the principle
  with the reality by stating that, if a law neither burdens a fundamental right
  nor targets a suspect class, we will uphold the legislative classification.
	 Amendment 2 fails, indeed defies, even this conventional inquiry. First,
  the amendment has the peculiar property of imposing a broad and
  undifferentiated disability on a single named group, an exceptional and, as we
  shall explain, invalid form of legislation. Second, its sheer breadth is so
  discontinuous with the reasons offered for it that the amendment seems
  inexplicable by anything but animus toward the class that it affects; it lacks
  a rational relationship to legitimate state interests. 
	Taking the first point, even in the ordinary equal protection case calling
  for the most deferential of standards, we insist on knowing the relation
  between the classification adopted and the object to be attained. The search
  for the link between classification and objective gives substance to the Equal
  Protection Clause; it provides guidance and discipline for the legislature,
  which is entitled to know what sorts of laws it can pass; and it marks the
  limits of our own authority. In the ordinary case, a law will be sustained if
  it can be said to advance a legitimate government interest, even if the law
  seems unwise or works to the disadvantage of a particular group, or if the
  rationale for it seems tenuous...By requiring that the classification bear a
  rational relationship to an independent and legitimate legislative end, we
  ensure that classifications are not drawn for the purpose of disadvantaging
  the group burdened by the law. 
	 Amendment 2 confounds this normal process of judicial review. It is at once
  too narrow and too broad. It identifies persons by a single trait and then
  denies them protection across the board. The resulting disqualification of a
  class of persons from the right to seek specific protection from the law is
  unprecedented in our jurisprudence...   
	It is not within our constitutional tradition to enact laws of this sort.
  Central both to the idea of the rule of law and to our own Constitution's
  guarantee of equal protection is the principle that government and each of its
  parts remain open on impartial terms to all who seek its assistance.
  "`Equal protection of the laws is not achieved through indiscriminate
  imposition of inequalities.'" Sweatt v. Painter, 
	
	339
  U.S. 629, 635 (1950) (quoting Shelley v. Kraemer, 
	
	
	334
  U.S. 1, 22 (1948)). Respect for this principle explains why laws singling
  out a certain class of citizens for disfavored legal status or general
  hardships are rare. A law declaring that in general it shall be more difficult
  for one group of citizens than for all others to seek aid from the government
  is itself a denial of equal protection of the laws in the most literal sense.
  --Justice Kennedy 
 
  
	The Court has mistaken a Kulturkampf for a fit of spite. The constitutional
  amendment before us here is not the manifestation of a "`bare . . .
  desire to harm'" homosexuals, ante, at 13, but is rather a modest attempt
  by seemingly tolerant Coloradans to preserve traditional sexual mores against
  the efforts of a politically powerful minority to revise those mores through
  use of the laws. That objective, and the means chosen to achieve it, are not
  only unimpeachable under any constitutional doctrine hitherto pronounced
  (hence the opinion's heavy reliance upon principles of righteousness rather
  than judicial holdings); they have been specifically approved by the Congress
  of the United States and by this Court.
	 In holding that homosexuality cannot be singled out for disfavorable
  treatment, the Court contradicts a decision, unchallenged here, pronounced
  only 10 years ago, see Bowers v. Hardwick, 
	
	478
  U.S. 186 (1986), and places the prestige of this institution behind the
  proposition that opposition to homosexuality is as reprehensible as racial or
  religious bias. Whether it is or not is precisely the cultural debate that
  gave rise to the Colorado constitutional amendment (and to the preferential
  laws against which the amendment was directed). Since the Constitution of the
  United States says nothing about this subject, it is left to be resolved by
  normal democratic means, including the democratic adoption of provisions in
  state constitutions. This Court has no business imposing upon all Americans
  the resolution favored by the elite class from which the Members of this
  institution are selected, pronouncing that "animosity" toward
  homosexuality, ante, at 13, is evil. I vigorously dissent. --Justice Scalia 
 
     
Gay
  Rights 
  
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