11/18/2008
1992 Colorado Anti-Gay Discrimination Case Much Like California's
A 1992 court battle in Colorado over anti-gay discrimination offers hope for how the California Supreme Court might handle the case.
"Following the enactment of Colorado's Amendment 2, its opponents filed suit claiming that it unlawfully singled out gays and lesbians as a class to deny them rights that other citizens not only possess but take for granted. These rights include access to housing, government services, public accommodations and public and private employment opportunities without regard to an individual's race, sex, religion, age, ancestry, political belief or other characteristic that defines each of us as a unique human being. Amendment 2, the opponents argued, therefore denied gays and lesbians the equal protection of the laws, which is a guarantee of the 14th Amendment to the U.S. Constitution. To the surprise of many, the U.S. Supreme Court agreed."
Posted 12:00 PM EST by Andy Towle in California, Colorado, Discrimination, Gay Marriage, News, Proposition 8 | Permalink
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ANdy, thanks for your tireless and hard work! Dare I say it, the politicization of Towleroad has made it even more energized of a must-read.
But you missed the best part of the Colorado ruling:
"Laws such as Amendment 2 "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected," Kennedy wrote, adding a reference to another 1973 ruling. "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."
TRUE.
Posted by: Strepsi | Nov 18, 2008 12:25:40 PM
The only problem I see here is 1992 was before George W Bush put his untra-conservative, anti gay nominees into the supreme court. The supreme court looks a lot shakier for gay rights now than it did in 1992. Hopefully I'm wrong about that. Maybe the Obama administration will help change that.
Posted by: matthew | Nov 18, 2008 12:36:55 PM
Romer v. Evans was a 6-3 decision (which O'Conner was a part of that majority). Alito replaced O'Conner on the court, but as Prof Gray states, there is no reason to think Justice Kennedy has a different view constitutionally on these matters. So, the case could still come out 5-4 in our favor.
Posted by: ERB | Nov 18, 2008 1:11:29 PM
The amendment 2 case as extremely technical and not applicable to the CA prop 8 case, which is not heading to the SC right at the moment anyway. More applicable was the case that went through the courts after Hawai'i banned gay marriage. Hawai'i still bans gay marriage. Lawrence v Texas was won largely on the notion that the state would need a compelling interest to bar sodomy because otherwise individuals were free to do as they wished in the bedroom. Marriage is a onus placed on the state to recognize a legal status of its residents. The state does not need a compelling interest to formulate the conditions of such a status, as it must furnish the onus, not the individual. It's like getting a driver's license.
Posted by: anon | Nov 18, 2008 1:27:34 PM
I don't like the idea of this going to the Supreme Court right now. The amendment in Romer was a much broader one and more clearly implicated equal access to the courts. The justices are zealous in protecting access to courts, but the analysis on the right to marriage has been narrowed over the past several decades. In Lawrence v. Texas, the majority was very careful to say that their rhetoric did not extend to marriage. Taking this issue before the current court would very likely lead to a loss -- and a bad precedent moving forward.
Even if we did win, there would be a tremendous backlash from the right, and you can almost guarantee that Democrats would lose handily in the next elections. It would be better to bring a new proposition to repeal Prop 8; the numbers were already close, and support has been growing. If marriage rights are approved by the CA citizenry, the right will have no good argument against it (vis-a-vis the common attacks on "unelected judges").
It would be better to bring a Romer-style case later, with a more receptive court and after the nation has had more time to see that marriage equality (with CA, NY, and some other states on board) isn't the catastrophe they feared.
Posted by: Brian | Nov 18, 2008 1:34:21 PM
I think we should just forget about gay marriage in this bigoted country. Instead we should work to secure civil unions wherever that can be accomplished and move to those states. Overwhelming majorities of Americans hate us and we should accept that fact. What we can do is deprive the bigots of our money. It must be done scrupulously so as not to affect our allies. Let's go back to our ghettoes where we can defend ourselves and live without societies moral dictates. And please let's stop this childish adoration of female divas. Most of them (Donna Summer) only loved us for our money. It's time to beging behaving like adult women and men.
Posted by: kukito | Nov 18, 2008 2:12:38 PM
Anon:
You do not know what you are talking about. Read In Re Marriage the case that found marriage rights for gays.
First, gays were found to be a suspect class. This is basic equal protection analysis outside of fundamental rights. This is not found in other states. Every other case found gays not to be a suspect class. This means that there will be strict scrutiny or heightened scrutiny unless the Court overturns its ruling.
Second, marriage has been both at the federal level and in the state of California to be a fundamental right. This has been true since Loving v. Virginia. I tired of reading posts where people chime in not knowing this. It was specifically found to be the case in California constitutional law. This is the second reason that there will be strict scrutiny.
The rational basis test unless the court against overturns itself less than year after having made the ruling will not be the standard.
The arguments you are making were already made and found to be wrong by the California Supreme Court.
The primary reason why the Colorado case is inapplicable is that it actually applied the rational basis test in a way that it had never been applied. As my Con Law professor used to say- it's rational basis with teeth.
For those here who do not know this- Con law questions like this have three levels of scrutiny. a) Rational basis (almost everything will meet the standard of being found Constitutional because it says all you have to do is say that a law is rational for some reason. It does not matter if the reason is not true or not. You just have the imagine it. This is why the Romer case was a big deal- because it added- it had to actually be rational and proven as such.).
b) The second test is intermiate scruntiny-- this test says that the govt must show a strong reason for its laws. This shifts the burden to the state. Some laws will be okay, but others will not because the burden is now on the state under this standard.
c) The most difficult standards involve cases like equal protection analysis and fundamental rights (ie, to vote, to marry, free speech, etc). Most laws do not pass this test because its a really difficult burden for the govt or law to meet. This is why folks like Anon must argue rational basis. They know Prop 8 would not meet strict scrutiny standards for the appropriate procedure for changing the CA Constitution. One would need a revision or more compelling process than a bare majority.
Indeed, if you look up the petitions- what I just wrote about strict scrutiny can probably be found there.
As for Romer, the standard was completely different than ordinary equal protection or fundamental right analysis.
I do not think it bares any relationship to Prop 8 in that the case for Prop 8 is actually much stronger than the Colorado case with regard to California state constitutional law versus federal constitutional law.
Posted by: The Gay Numbers | Nov 18, 2008 2:15:15 PM
Kukito
Your analysis is irrelevant to equal protection. It is exactly why we have equal protection analysis. To protect hated minorities from the opressive laws of the majority. You sound like someone from a third world country.
Posted by: akaison | Nov 18, 2008 2:20:08 PM
@KUKITO
"adult women and men" live and work and pay taxes in society. As such we get to drink from the same fountain. Separate by Equal is Not Equal. Period.
Posted by: Strepsi | Nov 18, 2008 2:45:27 PM
The Gay Numbers:
The problem is that any decision on the amendment (as opposed to the procedural issue of whether this constitutes a constitutional revision) would have to come from federal courts under the federal constitution. Federal courts have not held gays to be a suspect class, Lawrence was decidedly murky about its standard, and marriage jurisprudence has narrowed the right to marry since the days of Loving and Zablocki.
Posted by: brian | Nov 18, 2008 2:55:36 PM
But this is a case for the California Supreme Court at this point, and being argued on a completely different basis. The US Constitution and the analyses discussed in these comments are not even at issue. Sorry Andy, nothing at all like Colorado.
The Lambda Legal site explains:
There are 2 ways to amend the California Constitution. Ballot measures (like Prop 8) can be used if they do not impact the underlying principles of the state Constitution. Otherwise a more elaborate process is required, starting with a 2/3 vote of the legislature and then a ballot.
So the question is: how big a change does Prop 8 make? Does it impact the underlying principles of the state Constitution? If so, then its backers will have to start again and try first to get 2/3 of the legislature to back it. If so, they can proceed to a ballot initiative.
The court will be deciding if "underlying principles" includes the role of the state courts in guaranteeing the equal rights of minorities.
See: http://www.lambdalegal.org/news/pr/legal-groups-file-lawsuit.html
Posted by: Will | Nov 18, 2008 5:32:01 PM
But this is a case for the California Supreme Court at this point, and being argued on a completely different basis. The US Constitution and the analyses discussed in these comments are not even at issue. Sorry Andy, nothing at all like Colorado.
The Lambda Legal site explains:
There are 2 ways to amend the California Constitution. Ballot measures (like Prop 8) can be used if they do not impact the underlying principles of the state Constitution. Otherwise a more elaborate process is required, starting with a 2/3 vote of the legislature and then a ballot.
So the question is: how big a change does Prop 8 make? Does it impact the underlying principles of the state Constitution? If so, then its backers will have to start again and try first to get 2/3 of the legislature to back it. If so, they can proceed to a ballot initiative.
The court will be deciding if "underlying principles" includes the role of the state courts in guaranteeing the equal rights of minorities.
See: http://www.lambdalegal.org/news/pr/legal-groups-file-lawsuit.html
Posted by: Will | Nov 18, 2008 5:33:28 PM