Romer v. Evans

[Peter]

http://en.wikipedia.org/wiki/Romer_v._Evans

One of the well known gay rights cases - it struck down a Colorado Constitutional Amendment on basis of the equal protection clause.

Arguably it elevated homsexuals/bisexuals to the status of a higher level of scrutiny that just rational basis tests without actually saying so. I tend to think that it didn't, though I think the Court should.

All in all, a solidly sound decision.

[Blue Rectangle]

A bad decision.

I was too young, by about a week, to vote on this issue.  At the time, I would have voted yes, but I was torn on the issue.  I would not vote for it today.

The SCOTUS effectively ruled that:
--Discrimination against homosexuals is equivalent to discrimination against racial minorities.
--States may not decide to ban quotas or other "anti-discrimination" laws.

The amendment prohibited laws that allowed homosexuals to:

...claim any minority status, quota preferences, protected status or claim of discrimination...

(From wiki):

Kennedy argued that protection from antidiscrimination laws was not a "special right" because they protected fundamental rights allegedly enjoyed by all other citizens. Though antidiscrimination laws "enumerated" certain groups which they protected, this merely served to put others on notice (i.e., the enumeration was merely declaratory).

Wait, so "minority status" is not a "special right", but is something we all enjoy?  Even the majority?  That's news to me.  I was also unaware that I, as a white straight male, can claim quota preferences.  But, apparently, quota preferences are something that all races and genders enjoy.

If everyone is entitled to fundamental rights like beneficial hiring quotas, etc. via the Constitution, as Kennedy claims, then what is the harm in banning local laws that duplicate these protections?  According to Kennedy's own reasoning, Amendment 2 could not cause injury because the Constitution already protected homosexuals.  Of course, the motivation for passing Amendment 2 was that homosexuals did not have such protections, which disproves Kennedy's premise that "special rights" listed were actually fundamental rights.  The ruling was therefore a case of judicial activism: a set of new rights was created with no Constitutional basis.

[Emsworth]

I am with the majority of the Supreme Court on this: the Colorado amendment was unconstitutional. This has nothing to do with minority status, affirmative action, or special rights. It has to do with whether they were equally protected under the law.

The relevant provision of the Colorado Constitution is:

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

Note that only heterosexuals are excluded from this amendment. This amendment would permit Colorado to grant heterosexuals "protected status or claim of discrimination," but it would not permit Colorado to grant the same to homosexuals. By allowing the grant of protected status or claim of discrimination to heterosexuals, but prohibiting it to homosexuals, the state has violated the equal protection clause. On the other hand, if this amendment extended its prohibitions to all sexual orientations, it would be permissible.

Therefore, it does not matter if the state is extending special rights to someone or not. It only matters if the state is extending protections to a certain class of people, but not another class, without any rational basis.

The SCOTUS effectively ruled that:
--Discrimination against homosexuals is equivalent to discrimination against racial minorities.

Nothing in the Constitution says that the equal protection clause extends only to racial minorities.

[Blue Rectangle]

Emsworth, you are basically making the same argument as the Colorado Supreme Court.  It also sounds like O'Connor's argument in Lawrence v. Texas.  I generally agree with you and that is why I wouldn't support the law.  However, Kennedy's reasoning was different and I don't support his reasoning.

The SCOTUS effectively ruled that:
--Discrimination against homosexuals is equivalent to discrimination against racial minorities.

Nothing in the Constitution says that the equal protection clause extends only to racial minorities.

That's true.  But I'm criticizing Kennedy's already extraconstitutional opinion that racial minorities can (and should) be granted special rights in the name of equal protection.  (I believe affirmative action is an obvious violation of equal protection.)  Kennedy then extends these special rights to cover homosexuals.  I see this as Kennedy pushing his personal political view on an unwilling public.

[Emsworth]

That's true.  But I'm criticizing Kennedy's already extraconstitutional opinion that racial minorities can (and should) be granted special rights in the name of equal protection.

I completely agree. If a state decides to treat all sexual orientations equally, by denying all of them the ability to sue on the basis of discrimination, that's fine; there is no constitutional right for any such special protections.

[Blue Rectangle]

That's true.  But I'm criticizing Kennedy's already extraconstitutional opinion that racial minorities can (and should) be granted special rights in the name of equal protection.

I completely agree. If a state decides to treat all sexual orientations equally, by denying all of them the ability to sue on the basis of discrimination, that's fine; there is no constitutional right for any such special protections.

OK, so replace "homosexual, lesbian or bisexual orientation" with "sexual orientation" and we're good to go.

And if Bush gets a good replacement for O'Connor, the new law would only be struck down by a 5-4 vote.

[A18]

The equal protection clause could mean a million things in the abstract. It could mean we have to let four year olds vote, and install unisex toilets in state buildings. But it never meant any of that, and no educated person ever thought it meant any of that, and so it doesn't mean that now. Same principle applies here: let's not go "equal protection crazy."

Emsworth, are you arguing that if a state prohibits race discrimination, it has to prohibit every other form of discrimination as well?

[Emsworth]

Emsworth, are you arguing that if a state prohibits race discrimination, it has to prohibit every other form of discrimination as well?

I am not of that opinion. But if the state prohibits discrimination against one race, it cannot deny a similar protection to any other race. Similarly, I argue, if it prohibits discrimination against one sexual orientation, it may not deny such protection to another.

The equal protection clause is a difficult one to interpret. The Framers of the Fourteenth Amendment, I hear, had very different views about the effect of this clause. Chief Justice Warren wrote in Brown v. Board, about the legislative history of the amendment:

"This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly ... wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty."

Unfortunately, the courts of today cannot turn to legislative history to determine what the clause means. The text of the clause is extremely vague; perhaps that is why Oliver Wendell Holmes once called the clause "the last resort of constitutional arguments." (I will note that this further increases my disregard for the drafting skills of those who wrote the Fourteenth Amendment, perhaps the most unclear, muddled, and poorly-worded part of the Constitution.)

The equal protection clause certainly protects race, at the very least, but I think it protects something more. I believe that it prohibits a state from discriminating between classes of persons, except upon some rational basis: state laws should not be arbitrary in their application.

Of course, there are limitations. To quote the Supreme Court in Barbier v. Connolly, "Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment." Furthermore, "One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary" (Lindsley v. Natural Carbonic Gas Co.).

I suppose that it could be argued that promotion of sexual mores is a reasonable basis or public purpose, making this argument even more suspect. I will not presume to say that the equal protection argument here is ironclad; in fact, by the very nature of the clause, it is on a very weak foundation. The only saving grace, so to speak, is that Supreme Court precedents have not limited the scope of the equal protection clause to race.

[Peter]

And if Bush gets a good replacement for O'Connor, the new law would only be struck down by a 5-4 vote.

Because John Roberts is really going to vote to overrule a decision where he actively fought for what became the majority opinion?

Whilst it is certainly true that lawyers do not necessarily hold the views they argue for, private client work of this magnitude is not taken on unless you have at least a shred of belief in it.

[CARLHAYDEN]

http://en.wikipedia.org/wiki/Romer_v._Evans

One of the well known gay rights cases - it struck down a Colorado Constitutional Amendment on basis of the equal protection clause.

Arguably it elevated homsexuals/bisexuals to the status of a higher level of scrutiny that just rational basis tests without actually saying so. I tend to think that it didn't, though I think the Court should.

All in all, a solidly sound decision.

A VERY, VERY, VERY BAD decision.

The court not only told the people of Colorado had no right to make law, but that the Supreme Court wouold rule them, but it also stated that homosexuals could have special rights denied to others..

[A18]

And if Bush gets a good replacement for O'Connor, the new law would only be struck down by a 5-4 vote.

Because John Roberts is really going to vote to overrule a decision where he actively fought for what became the majority opinion?

Whilst it is certainly true that lawyers do not necessarily hold the views they argue for, private client work of this magnitude is not taken on unless you have at least a shred of belief in it.

He never turned anyone down.

[CARLHAYDEN]

I am with the majority of the Supreme Court on this: the Colorado amendment was unconstitutional. This has nothing to do with minority status, affirmative action, or special rights. It has to do with whether they were equally protected under the law.

The relevant provision of the Colorado Constitution is:

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

Note that only heterosexuals are excluded from this amendment. This amendment would permit Colorado to grant heterosexuals "protected status or claim of discrimination," but it would not permit Colorado to grant the same to homosexuals. By allowing the grant of protected status or claim of discrimination to heterosexuals, but prohibiting it to homosexuals, the state has violated the equal protection clause. On the other hand, if this amendment extended its prohibitions to all sexual orientations, it would be permissible.

Therefore, it does not matter if the state is extending special rights to someone or not. It only matters if the state is extending protections to a certain class of people, but not another class, without any rational basis.

The SCOTUS effectively ruled that:
--Discrimination against homosexuals is equivalent to discrimination against racial minorities.

Nothing in the Constitution says that the equal protection clause extends only to racial minorities.

It seems that you compound a misunderstanding of the facts with a misunderstanding of the law.

The city of Denver has passed special laws for homosexuals. 

The law was clear that the people passed, that special rights may not be granted.

The Colorado Supreme court's decision was essentially that special laws can be enacted in favor of homosexuals!

So, can local governments pass laws giving special priviledges to other groups?

Answer, only if those groups are on the Colorado Supreme Court's politically correct list.

[Emsworth]

The city of Denver has passed special laws for homosexuals. 

The law was clear that the people passed, that special rights may not be granted.

The amendment stated that special rights may not be granted to homosexuals. It did not prohibit such rights from being granted to heterosexuals. If it had prohibited the granting of these benefits to all sexual orientation groups, then it would be constitutional, but as it so happens, it didn't do so.

The Colorado Supreme court's decision was essentially that special laws can be enacted in favor of homosexuals!

So, can local governments pass laws giving special priviledges to other groups?

If the local government ordinances protect only one sexual orientation from discrimination, then it is unconstitutional; but if it protects all of them from discrimination, then it is not. The same applies to the states: if only the constitutional amendment also prohibited granting special rights to heterosexuals, it would have been constitutional.

[CARLHAYDEN]

I must admit you are very good a doublespeak, whereby the matter is so distorted as to be unrecognizable.

The city of Denver granted SPECIAL rights to homosexuals. 

The Colorado Supreme Court declared that homosexuals are entitled to SPECIAL rights, and that the people of Colorado who opposed SPECIAL rights for homosexuals were to be overuled by the Supremes who exalted homosexuality.

So, in your version of the twilight zone giving SPECIAL rights to homosexuals constitutes equal protection, but not granting them SPECIAL rights constitutes a violation of equal protection?

[Emsworth]

So, in your version of the twilight zone giving SPECIAL rights to homosexuals constitutes equal protection, but not granting them SPECIAL rights constitutes a violation of equal protection?

No, if you read my previous argument carefully, you will find that I make no such assertion. Permit me to state it more clearly:

- The equal protection clause does NOT require states to grant "special rights" to any group.
- The Colorado constitutional amendment denies special rights to homosexuals.
- The Colorado constitutional amendment does NOT deny special rights to heterosexuals.
- Therefore, the Colorado constitutional amendment protects the "special rights" of heterosexuals more than those of homosexuals. Therefore, it is a violation of the equal protection clause.

The Denver law is presumably also unconstitutional, because just as the Colorado amendment protects heterosexuals more than homosexuals, so too do I believe that the Denver law protects homosexuals more than heterosexuals. But that is a completely different matter; all I am addressing is whether the Colorado amendment was constitutional or not.

[CARLHAYDEN]

Now lets see, 

P1. The Colorado Constitution prohibits granting special rights to any group). as per  Emsworth.

P2. The City of Denver did (by ordinance) grant special rights to homosexuals.

P3. The People of the State of Colorado sought to prevent the City of Denver (and other local governments) from granting special rights to homosexuals.

So, why wasn't the Denver ordinance ruled unconstitutional?

Answer, because the Colorado Supreme Court mangeled the law to say that homosexuals are entitled to special rights.

[Emsworth]

P1. The Colorado Constitution prohibits granting special rights to any group). as per  Emsworth.

Not to any group, but only to homosexuals and bisexuals. There is nothing that prohibits the granting of special rights to heterosexuals.

On a completely separate and unrelated point: the U.S. Supreme Court should not have granted certiorari in this case. In general, I believe that no state should be able to appeal the rulings of its own courts, even if those rulings are based on federal law. In general, it strikes me as somewhat absurd that when two branches of a state government differ, the federal government steps in to decide which is correct.

Of course, private entities should still be allowed to appeal to the Supreme Court.

[CARLHAYDEN]

Excuse me, but the Colorado Supreme Court clearly stated that the action by the people to prevent the City of Denver from granting SPECIAL rights to homosexuals was unconstitutional because homosexuals were a group entitled to SPECIAL rights.

IF homosexuals could NOT be granted SPECIAL rights under the Colorado Constitution BEFORE the initiative, then there would have been no need for the measure.

Ergo, the Colorado Supreme Court decided that HOMOSEXUALS were entitled to SPECIAL rights.

Remember that those opposing the measure in court would have the burden of proving that it would somehow diminish their rights. 

If, absent the measure, they still would have NOT been entitled to SPECIAL rights, then the challenge would have been moot.