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Age discrimination in employment --- Law and legislation.

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The U.S. Supreme Court this term in Romer v. Evans , decided 6 to 3 that the State of Colorado violated the right of lesbians and homosexuals to Equal Protection of the Laws when it adopted, by voter referendum, Amendment 2 to the State Constitution. That amendment rescinded various state and local laws prohibiting discrimination on the basis of "homosexual, lesbian or bisexual orientation" and barred the statutory enactment of any such civil rights protection in the future. Justice Kennedy's majority opinion affirmed the judgment but not the rationale of the Colorado Supreme Court which had applied "strict scrutiny" to invalidate Amendment 2 based on a "fundamental rights" analysis. Instead, the Kennedy-led majority applied a "rationality" standard to hold that the "broad and undifferentiated disability of a single named group" was irrational and could not be justified by any legitimate state interest. Bowers v. Hardwick was not mentioned by the Romer majority. In Bowers , a decade earlier the Court refused, by a 5 to 4 vote, to find that any constitutionally recognized "liberty" interest was contravened by a Georgia State law penalizing homosexual sodomy. Bowers was a "conduct" case seeking, in effect, due process protection from state prosecution for homosexual acts rather than safeguards against discrimination by the state based on sexual "orientation." The comprehensive nature of the legal disability visited upon the "isolated group" disadvantaged by Amendment 2, and the "unique" circumstances of its enactment, may also serve to distinguish and diminish the force of Romer in other legal and statutory contexts. The possible fragility of the Bowers precedent, and Romer's silence as to its status, could lead to future litigation on a variety of fronts.

Gay rights

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"In recent years, many academic institutions have enacted rules that protect homosexuals from discrimination on campus. As a result, colleges, universities, and even high schools have sought to bar military recruiters from their campuses and/or to eliminate Reserve Officer Training Corps (ROTC)programs on campus because of "Don't Ask, Don't Tell," the DOD policy excluding known or admitted homosexuals from military service. At the same time, federal legislation has been enacted to prevent the government from funding higher educational institutions that block military recruiters from campus. On March 6, 2006, the Supreme Court reversed a federal appeals court ruling in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR). In so doing, eight Justices upheld the constitutionality of the Solomon Amendment, which forbids most forms of federal aid to higher educational institutions that deny military recruiters access to students equal to that provided other employers."

Gay military personnel --- Federal aid to higher education

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The U.S. Supreme Court this term in Romer v. Evans , decided 6 to 3 that the State of Colorado violated the right of lesbians and homosexuals to Equal Protection of the Laws when it adopted, by voter referendum, Amendment 2 to the State Constitution. That amendment rescinded various state and local laws prohibiting discrimination on the basis of "homosexual, lesbian or bisexual orientation" and barred the statutory enactment of any such civil rights protection in the future. Justice Kennedy's majority opinion affirmed the judgment but not the rationale of the Colorado Supreme Court which had applied "strict scrutiny" to invalidate Amendment 2 based on a "fundamental rights" analysis. Instead, the Kennedy-led majority applied a "rationality" standard to hold that the "broad and undifferentiated disability of a single named group" was irrational and could not be justified by any legitimate state interest. Bowers v. Hardwick was not mentioned by the Romer majority. In Bowers , a decade earlier the Court refused, by a 5 to 4 vote, to find that any constitutionally recognized "liberty" interest was contravened by a Georgia State law penalizing homosexual sodomy. Bowers was a "conduct" case seeking, in effect, due process protection from state prosecution for homosexual acts rather than safeguards against discrimination by the state based on sexual "orientation." The comprehensive nature of the legal disability visited upon the "isolated group" disadvantaged by Amendment 2, and the "unique" circumstances of its enactment, may also serve to distinguish and diminish the force of Romer in other legal and statutory contexts. The possible fragility of the Bowers precedent, and Romer's silence as to its status, could lead to future litigation on a variety of fronts.

Gay rights

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E.O. 13087 amends a nearly 30 year-old executive order, E.O. 11478, to prohibit sexual orientation discrimination in most federal civilian employment along with the other forms of bias covered by the earlier order. The nondiscrimination and "affirmative program of equal employment opportunity" requirement of the executive order extends to "every aspect of personnel policy and practice in employment, development, advancement, and treatment of civilian employees of the federal government." It applies to civilian employment by the executive branch, including the military departments, and sundry other agencies but does not cover the uniformed military. In addition, although it purports to apply to legislative and judicial branch entities "having positions in the competitive service," relatively few such positions exist outside the executive branch, and E.O. 11478 has been judicially held not to apply to noncompetitive and excepted service personnel. This report will be updated as events warrant.

Discrimination in employment.