Efforts to overturn Prop. 8

Previous U.S. Supreme Court cases
vaguely similar to the Prop. 8 case

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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.

They are:

	Loving v. Virginia (1967) concerning inter-racial marriage.
	Romer v. Evans (1996) concerning an anti-gay amendment to the Colorado constitution.
	Lawrence v. Texas (2003) concerning anti-gay laws in Texas and over a dozen other states.

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 heritage.

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 ... " ₂

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 relationships'." ₄

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." ₃

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:

This decision 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.

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).

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.

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 conduct." ₆

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. ₇

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 occurred in 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 polygamous marriages.

References used:

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: http://www.lambdalegal.org/
Jack M. Balkin, "Mildred Loving Speaks," Balkinization blog, 2008-MAY-06, at: http://www.intellisearchnow.com/
"Roy Romer, Governor of Colorado v. Richard G. Evans..." National Legal Foundation, at: http://www.nlf.net/
The text of the Supreme Court decision in Romer v. Evans is online at: http://caselaw.lp.findlaw.com
"FRC Ready to Respond to Supreme Court Ruling in Texas Sodomy Case," Family Research Council, 2003-JUN-25, at: http://www.frc.org/
"High Court Rejects Sodomy Law," CBS News, 2003-JUN-26, at: http://www.cbsnews.com/
"Court overturns Texas sodomy law," MSNBC News, 2003-JUN-26, at: http://www.msnbc.com/
"Supreme Court strikes down Texas sodomy law," CNN.com Law Center, 2003-JUN-26, at: http://www.cnn.com/
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