Efforts to overturn Prop. 8
Previous U.S. Supreme Court cases
vaguely similar to the Prop. 8 case
Some rulings of the U.S. Supreme Court
There are at least three rulings by the U.S. Supreme Court that
might possibly give some idea on how the U.S. Supreme court might rule on the same-sex marriage (SSM) situation in California
in the event that a challenge to Prop. 8 actually reaches that court.
Loving v. Virginia ruling of 1967:
Prior to the court's decision, 16 states still had miscegenation
laws in place that prohibited marriage between persons of different races. These
states had defined marriage only as a union of a man and woman who were of
the same race.
These laws were often challenged in court. However, "...
in case after case, legislation prohibiting racial inter-marriage was justified
as unbending tradition rooting in received natural law." 1
In Loving v. Virginia, the Supreme Court broke with this tradition and ruled that the miscegenation
laws were unconstitutional. This decision
legalized inter-racial marriage across the United
States. The court, in effect, redefined marriage as a union of a man and woman of any racial
At the time of the ruling, about 72% of American adults opposed interracial marriage. It was only in 1991
that most adults supported the right of interracial couples to marry. This represents a
drop of 23 percentage points in 24 years: about one percentage point per year.
By mid-2009, about 45% of American adults support same-sex
marriage -- a value that is increasing over time.
Blogger Jack M. Balkin wrote:
"In Loving v. Virginia, the Supreme Court held that laws banning
interracial marriage violated the Equal Protection Clause both because they
violated principles of racial equality and because they abridged a fundamental
right to marry. The case is doctrinally important for many reasons, including
the Court's recognition that the Equal Protection clause protects certain
fundamental rights, for its recognition of a fundamental right to marry, for
its application of strict scrutiny to strike down racial classifications ... "
One could speculate that if a challenge to Prop. 8 made it to
the U.S. Supreme Court, it could conceivably be declared unconstitutional because it
violates the Equal Protection Clause of the U.S. Constitution on two grounds:
It violates principles of gender equality, and
It abridges a fundamental right to marry.
Romer v. Evans ruling of 1996:
"In early 1991, a
group of citizens in Colorado Springs became concerned over the passage of local
ordinances in several Colorado municipalities." 3
The ordinances granted equal protection for persons of all sexual orientations:
homosexual, bisexual and homosexual. There was also a governor's executive order
regarding state employment, an entry in the state insurance code, and policies
at two colleges -- all prohibiting discrimination on the basis of sexual
orientation, and all protecting heterosexuals, bisexuals and homosexuals equally.
The concerned citizens formed Colorado for Family
Values, a group of conservative Christians motivated by a desire to
prevent ordinances, orders, and policies that outlawed discrimination against homosexuals and bisexuals.
The sponsored, and succeeded in
having the voters narrowly pass, Amendment 2 -- an anti gay, lesbian and
bisexual revision to the Colorado Constitution. It prohibited:
"all legislative, executive, or judicial action at any level of state or
local government designed to protect the status of persons based on their
'homosexual, lesbian or bisexual orientation, conduct, practices or
One perhaps unexpected result of the amendment
would be that a city hall employee would have to refuse a request by a bisexual
man for a marriage license to marry his girlfriend (or vice versa). Now, that
would have made an interesting court challenge!
A coalition of LGBT groups
(lesbians, gays, bisexuals transgender persons, and transsexuals), civil
liberties groups, and representatives from some Colorado municipalities launched
a lawsuit that challenged Amendment 2. They won at the trial court and before the
Colorado Supreme Court.
The state appealed to the U.S. Supreme Court. The plaintiffs again won.
Justice Anthony Kennedy, writing for the majority, said:
"Amendment 2 classifies homosexuals not to further a proper legislative end
but to make them unequal to everyone else. This Colorado cannot do. A State
cannot so deem a class of persons a stranger to its laws. Amendment 2 violates
the Equal Protection Clause..." 4
He also wrote:
"... that Amendment 2 did
discriminate against an identifiable class of people and violated their rights
to due process and equal protection under the law. The court held that Amendment
2 was based in 'animus,' or hatred, against a specific group of people."
Justice Scalia wrote the dissenting
argument. He referred to Amendment 2 as "Colorado's reasonable effort to
preserve traditional American moral values."
Lawrence v. Texas ruling of 2003:
decriminalized same-sex sexual behavior in private
between consenting adults. Two gay males had been arrested by Texas police under the
state's Homosexual Conduct Law. It defined anal or oral sex between two men
or two women as deviate sexual intercourse. However, the same behavior by a man and
and a woman was considered legal. The men were tried, convicted, and
fined. They appealed their case all the way to the U.S. Supreme Court.
One day before the
Supreme Court ruling, Ken Connor, then president of the fundamentalist Christian
Family Research Council issued a media advisory. He wrote:
"In the amicus brief FRC filed for this case and in every public statement we
have made, we have acknowledged that this case is not just about Texas' law
banning homosexual sodomy. With their ruling in this case, the Supreme Court
will either protect the sanctity of marriage or they will put this country on
the fast track to recognizing same-sex marriages.
Connor's wishes were not to come to pass; the plaintiffs won.
Almost invariably, ethical and moral rulings by that court are decided by a 5 to 4 vote. This
case was an exception; the vote was 6 to 3.
The law has historically
respected and protected the marital union and has distinguished it from acts
outside that union, such as fornication, adultery and sodomy. To extend
homosexual sodomy the same protections given to the marital union would
undermine the definition of marriage and could open the door for homosexual
marriage. The court should demonstrate judicial humility and decline to
deconstruct in radical and revolutionary ways the bedrock social institution of
marriage." 5 (Emphasis theirs).
Justice Anthony Kennedy again wrote for the majority. using an argument that the
wording of the U.S. constitution does not state, but implies, that citizens have
a right to some degree of privacy from government intrusion. He stated:
"The case does involve two adults who, with full and mutual consent from each
other, engaged in sexual practices common to a homosexual lifestyle. Their right
to liberty under (the Constitution) gives them the full right to engage in their
conduct without intervention of the government....[They] are entitled to respect
for their private lives...The state cannot demean their existence or control
their destiny by making their private sexual conduct a crime....In our tradition
the State is not omnipresent in our home...Liberty presumes an autonomy of self
that includes freedom of thought, belief, expression, and certain intimate
Justice Sandra Day O'Connor agreed with the majority decision, but disagreed with portions of Justice
Kennedy's rationale. In a separate opinion, she indicated that the law should
have been declared unconstitutional because it violated the 14th Amendment to the U.S.
Constitution which guarantees equal protection for all persons. The majority
ruling argued from the concept of personal privacy and had ignored the 14th Amendment implications of the case.
Justice Antonin Scalia is a strict constructionist who interprets that U.S.
Constitution literally, using the mindset of its 18th century authors. Those
authors lived in a time when human slavery was legal, when women were prohibited
from entering many professions, or voting, or running for office, and when
sexually active homosexuals were given very long jail sentences. The culture has
changed from those days, but Justice Scalia views the Constitution as fixed. He
sees no right of privacy implied in the document.
He wrote the minority opinion, saying:
This reasoning leaves on shaky, pretty shaky grounds, state laws limiting marriage to opposite-sex couples. ... Let
me be clear that I have nothing against homosexuals, or any other group, promoting their agenda though normal
democratic means." [The court is] departing from its role in assuring, as neutral observer, that the
democratic rules of engagement are observed." 6,8
Justice Scalia wrote that the majority Justices pretended that they have left enough freedom:
"... so that we need not fear judicial imposition of homosexual marriage, as has recently
Canada...Do not believe it...[The majority opinion] dismantles the structure of constitutional law
that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as
formal recognition in marriage is concerned." 9
He said that laws against bigamy, adultery, prostitution, bestiality and obscenity were now susceptible to
challenges. 10 This might be
extended to same-sex marriage and
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"Lewis et al., v. Harris, et al. Superior Court of New Jersey: Brief of
plaintiffs in opposition to defendant's motion to dismiss," 2003-MAY-8, at:
Jack M. Balkin, "Mildred Loving Speaks," Balkinization blog, 2008-MAY-06, at:
"Roy Romer, Governor of Colorado v. Richard G. Evans..." National Legal Foundation, at:
The text of the Supreme Court decision in Romer v. Evans is online at:
"FRC Ready to Respond to Supreme Court Ruling in Texas Sodomy Case,"
Family Research Council, 2003-JUN-25, at:
"High Court Rejects Sodomy Law," CBS News, 2003-JUN-26, at:
"Court overturns Texas sodomy law," MSNBC News, 2003-JUN-26, at:
"Supreme Court strikes down Texas sodomy law," CNN.com Law Center, 2003-JUN-26, at:
Tim Harper, "Sodomy laws struck down: Highest U.S. court says Texas
statute unconstitutional. Dissenter warns of legalized marriage for homosexuals,"
Toronto Star, 2003-JUN-27, Page A3.
Linda Greenhouse, "Justices, 6-3, legalize gay sexual conduct in sweeping
reversal of court's '86 ruling. Cite privacy right. Texas sodomy law held
unconstitutional - Scathing dissent," The New York Times, 2003-JUN-27, Page
A1 & A19
Copyright © 2009 by Ontario Consultants on Religious
Original posting: 2009-JUL-3
Latest update: 2009-JUL-3
Author: B.A. Robinson