A dissenting liberal law professor who is concerned about judicial power generally recently noted he is no fan of Romer v. Evans, in part for it not referencing Bowers v. Hardwick as well for it exaggerating the reach of the law in question. I found this an overcorrection. And, like with other complaints regarding Justice Kennedy's gay related content in particular, found it generally unfair. To the degree the opinion might be open to criticism, I don't find it particularly noteworthy in comparison to others.
Judge Kennedy way back in 1980 (pre-Bowers) held for a lower court that there was reasonable arguments that consistent application of equal protection and due process concerns (which again, as he did later on as a justice, he saw as related) would in some sense apply to homosexuals:
Thus, the lower court in Romer v. Evans dealt with the opinion with basically the back of its hand:
The dissent accused the majority of taking a position in the culture wars, to help homosexuals' quest for social endorsement, but this is more like preventing the passage of a specific policy (and in the oral argument, the state attorney -- now a federal judge -- aggravated Justice Breyer in avoiding clearly specifying just what was blocked) to things like stopping violent attacks on gay people. The appeal to a polygamy ban (which even the dissent granted didn't cover certain things that it once might have like mere advocacy) is not quite on point when the issue is orientation and status. What is left appears to be reliance on it merely being a facial challenge, so parts of the law might be okay. On that, again, the majority's discussion is far from not reasonable. And, the breadth of the law merits doubts.
[As with the reference to Bowers, the opinion might be criticized on narrow grounds as to reach, including sending it back to gain more clarity. The "political process doctrine" -- to cite Justice Sotomayor (see footnote) -- very well might also have been a sound approach in deciding this case too. There was some overlap there and striking down DOMA.]
The Supreme Court sets a basic equal protection principle:
The opinion spells out the reach and as the lower court did cites the shallow state interests cited. The limited social disfavor argument that the dissent deems legitimate is unpleasant, yes, but it also is done in an excessive way. It does not merely block specific conduct or state authorized marriages of the form of polygamy or same sex couples. DOMA being passed about this time too. (Again, bad too, but not as much.) And, concerns like privacy (such as renting a homosexual for an extra room as compared to in an apartment building) or religious liberty (even to the degree allowed) could be more targeted.
So, yes, this violates classic class discrimination prohibitions and its novel use (as seen in U.S. v. Windsor, the DOMA case) is itself a red flag. Novel legislation very well can be valid, but suspicious legislation is better off being able to be defended by precedent that shows it is benign. The basic core of the opinion is sound though yes it was basically the unofficial start of the attack on Bowers itself, which rests on shoddy grounds. There is still a middle path, shown by the fact many states over the years criminalized same sex sodomy without blocking the passage of a range of policies dealing with people who might do that by normal political processes.
That level of special burden was seen as a bridge too far.
===
* The lower court cited a principle in Gordon v Lance that held: "We conclude that so long as such provisions do not discriminate against or authorize discrimination against any identifiable class they do not violate the Equal Protection Clause." So, something targeting racial groups or here sexual groups would be a problem. Again, the reach is unclear but the implication does seem to be a personal characteristic.
The issue in that case, however, was a bond measure. The Supreme Court had a bit on how important they might be but the true charm is reading some of the rhetoric of the majority and dissenting opinions below. "We consider this contention frivolous and wholly beside the point" is one of the softer bits. The wariness of the current Court regarding the whole idea might be suggested in an affirmative action case though see Sotomayor's (to me) convincing dissent.
** As the ruling noted
Judge Kennedy way back in 1980 (pre-Bowers) held for a lower court that there was reasonable arguments that consistent application of equal protection and due process concerns (which again, as he did later on as a justice, he saw as related) would in some sense apply to homosexuals:
Such cases might require resolution of the question whether there is a right to engage in this conduct in at least some circumstances. The instant cases, however, are not ones in which the state seeks to use its criminal processes to coerce persons to comply with a moral precept even if they are consenting adults acting in private without injury to each other. Instead, these appeals require an assessment of a military regulation which prohibits personnel from engaging in homosexual conduct while they are in the service.And, it was left to legislation to end DADT, even after Lawrence v. Texas protected the conduct for civilians. Kennedy came to the Supreme Court after that Bowers. What was that about?
The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.And, per the last footnote, only on substantive due process grounds. There are a range of other things that homosexuals (and bisexuals) might be involved with here and in no way are they not protected across the board. The Supreme Court back in the 1950s protected a homosexual publication. Homosexuals in the next few decades were particularly concerned with being able to freely associate in public places like bars or to have associations at schools. Even "sodomy" itself suggests a certain type of action and its historical prohibition so reflected this. So, e.g., homosexuals holding hands or kissing etc. would not be covered by that.
Thus, the lower court in Romer v. Evans dealt with the opinion with basically the back of its hand:
The fact that there is no constitutionally recognized right to engage in homosexual sodomy, see Bowers v. Hardwick, is irrelevant. Amendment 2 by no stretch of the imagination seeks to criminalize homosexual sodomy. While it is true that such a law could be passed and found constitutional under the United States' constitution, it does not follow from that fact that denying the right of an identifiable group (who may or may not engage in homosexual sodomy) to participate equally in the political process is also constitutionally permissible. The government's ability to criminalize certain conduct does not justify a corresponding abatement of an independent fundamental right.So, yes, Justice Kennedy should have addressed the dissent's focus on that opinion, but it would not have been very hard to do so. The lower court relied on the argument that a particular class was being blocked from equally being able to participate in the political process. Contra to the dissent, the majority opinion did not "reject" this approach as much as deciding the matter on other grounds. It is true that the political process precedents the lower court relied upon never really had much staying power at the Supreme Court beyond racial issues (and even there, only so much) though the logic is sound and officially still good law.*
No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. 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. This Section of the Constitution shall be in all respects self-executing.The immediate impetus of the state ballot measure was that localities were starting to protect GLB (T not quite a thing, I guess) groups. As the majority notes: "Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply." And, Colorado and other states and localities do not merely have general rules but specific policies for various groups (age, sex, veterans or whatever). The provision is only "special" not in blocking "special protections" but providing a special burden on this group. And, not in a limited way (e.g., same sex marriage, which as collection of things is arguably somewhere in the middle), but broadly.**
The dissent accused the majority of taking a position in the culture wars, to help homosexuals' quest for social endorsement, but this is more like preventing the passage of a specific policy (and in the oral argument, the state attorney -- now a federal judge -- aggravated Justice Breyer in avoiding clearly specifying just what was blocked) to things like stopping violent attacks on gay people. The appeal to a polygamy ban (which even the dissent granted didn't cover certain things that it once might have like mere advocacy) is not quite on point when the issue is orientation and status. What is left appears to be reliance on it merely being a facial challenge, so parts of the law might be okay. On that, again, the majority's discussion is far from not reasonable. And, the breadth of the law merits doubts.
[As with the reference to Bowers, the opinion might be criticized on narrow grounds as to reach, including sending it back to gain more clarity. The "political process doctrine" -- to cite Justice Sotomayor (see footnote) -- very well might also have been a sound approach in deciding this case too. There was some overlap there and striking down DOMA.]
The Supreme Court sets a basic equal protection principle:
By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.So, e.g., an old law excepted nepotism rules for a limited class of people for a reason that might seem dubious but it was narrow in nature. Or, only certain people were allowed to sell let's say eyeglasses. The law again might be seen as irrational but if it didn't target a fundamental right (which the lower court relied on -- the right to take part in the political process on an equal basis) or suspect class (homosexuals in the mid-1990s surely were not that though reasonably could have been) there is a whole lot of discretion given. But, there still has to be some minimum floor. So, e.g., we saw in one contraceptives case that mere moral beliefs that birth control are wrong is not a legitimate purpose. Also, it was irrational as applied to the unmarried, even though that isn't a group warranting heightened review.
The opinion spells out the reach and as the lower court did cites the shallow state interests cited. The limited social disfavor argument that the dissent deems legitimate is unpleasant, yes, but it also is done in an excessive way. It does not merely block specific conduct or state authorized marriages of the form of polygamy or same sex couples. DOMA being passed about this time too. (Again, bad too, but not as much.) And, concerns like privacy (such as renting a homosexual for an extra room as compared to in an apartment building) or religious liberty (even to the degree allowed) could be more targeted.
So, yes, this violates classic class discrimination prohibitions and its novel use (as seen in U.S. v. Windsor, the DOMA case) is itself a red flag. Novel legislation very well can be valid, but suspicious legislation is better off being able to be defended by precedent that shows it is benign. The basic core of the opinion is sound though yes it was basically the unofficial start of the attack on Bowers itself, which rests on shoddy grounds. There is still a middle path, shown by the fact many states over the years criminalized same sex sodomy without blocking the passage of a range of policies dealing with people who might do that by normal political processes.
That level of special burden was seen as a bridge too far.
===
* The lower court cited a principle in Gordon v Lance that held: "We conclude that so long as such provisions do not discriminate against or authorize discrimination against any identifiable class they do not violate the Equal Protection Clause." So, something targeting racial groups or here sexual groups would be a problem. Again, the reach is unclear but the implication does seem to be a personal characteristic.
The issue in that case, however, was a bond measure. The Supreme Court had a bit on how important they might be but the true charm is reading some of the rhetoric of the majority and dissenting opinions below. "We consider this contention frivolous and wholly beside the point" is one of the softer bits. The wariness of the current Court regarding the whole idea might be suggested in an affirmative action case though see Sotomayor's (to me) convincing dissent.
** As the ruling noted
In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.No, not seeing that much wrong there.
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