Romer v. Evans
Blue Rectangle:
Quote from: Emsworth on September 28, 2005, 03:13:31 PM
Quote from: Blue Rectangle on September 28, 2005, 03:11:04 PM
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. :P
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:
Quote from: A18 on September 28, 2005, 06:21:59 PM
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:
Quote from: Blue Rectangle on September 28, 2005, 03:18:42 PM
And if Bush gets a good replacement for O'Connor, the new law would only be struck down by a 5-4 vote. :P
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:
Quote from: Peter Bell on September 28, 2005, 12:22:50 PM
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..
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