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Concluding a Discussion of the Supreme Court's Term: Sex

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Praying the Gay Away

Back in July 2015 I wrote, in my round-up of THAT recently completed SCOTUS term, about the Court's decision to deny cert in KING v. CHRISTIE. This left standing the decision of the 3d Circuit C of A upholding New Jersey's ban on"conversion therapy," that is, on giving the "pray the gay away" stuff the mantle of science.

Two years later, there is another denial of cert to report in much the same situation.

Again the Court preserved a legislative rebuke to such therapy by denying cert.  There was a shade of difference. The earlier case was presented as a "free speech" challenge, this one as a "freedom of religion" challenge. Since Hobby Lobby, the  freedom-of-religion clause has been very chic in right-of-center circles. Personally, though, I thought that the earlier challenge had some prima facie plausibility, as I said at the time. I can't say that about this one.

The Sex Crime Registry and the Internet

In another matter, one that did get a full-dress deliberation by SCOTUS this term, a North Carolina man, a convicted sex offender,  posted on Facebook thanking God for the dismissal of a traffic ticket.

That post certainly sounds innocuous, but the law in NC prohibited anyone with that status on his record from using social media sites at all. The Justices found that this sweeping prohibition violates the first amendment. As with the other big first amendment case this year, the trademark disparagement case,  each of the eight Justices considering Packimgham agreed on the judgment, though (again as with Matal) there were differences as to the reasoning.

Justice Kennedy's opinion seemed to regard the internet as an analog to a public park, THE natural space where we speak and listen to one another these days. Justice Alito, in concurrence, was unhappy about that, calling it "loose rhetoric" and "undisciplined dicta."

Sex, Physical Presence, and Citizenship

Now for old-fashioned heterosexuality -- a decision about men, women, and babies.  Sessions v. Morales-Santana concerns, again, the equal protection clause, this time in the context of citizenship laws.  With implications for immigration policy.

A child who is born outside of the United States of an unwed mother who is a U.S. citizen is him/herself also a U.S. citizen.

If a child is born outside the U.S. to an unwed mother and the father of this child is a U.S. citizen -- that child is not necessarily a citizen of the U.S. under the Immigration and Nationality Act. Whether he will or won't be depends upon ... oh, never mind that for now!

In a somewhat confusing decision, the Supreme Court said this term that (a) this is unconstitutional because it denies equal protection of the laws, but (b) it reversed the decision of the court below, which had reached the same conclusion and which had acted on it by effectively conferring citizenship upon Morales-Santana.

SCOTUS essentially instructed Congress to look into that matter and re-write the law in a way that accords equal protection to both sets of babies.

I personally still marvel, though the matter is very old news in constitutional terms, at the way in which "equal protection" is used in challenges to federal statutes at all, given the fact that its ONLY appearance in COTUS is as a bar to states. That's my vestigial formalism, I fear.

Lesbian Parents

Finally, there is the matter of the birth certificate issued when a child is born to a woman married to another woman. Where the law for heterosexual couples is that both spouses are listed on the birth certificate as parents, then the law for homosexual married couples must be the same. The Justices joining in the per cur in Paven v. Smith saw this as a straightforward application of Obergefell, needing little further explanation.   The new guy, Gorsuch, dissented, joined by Thomas and Alito.

A lot of the commentary has turned on the question: what does this foretell about the bakery case? Does this mean that the court is going to be sweeping and mechanical about the application of Obergefell, and thus require bakeries to sell wedding cakes to gay and lesbian couples?

In a word: no. The issuance of the birth certificate like the issuance of the marriage license itself is a state act, obviously subject to equal protection jurisprudence. Ordering about dissenting private parties is another matter. We shall know how the judges decide it when they decide it.


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