Same-sex marriage bans in light of Amendment 2 decision

[Sapphocrat]

In the course of searching for something else, I stumbled across this quote from SCOTUS' 6-3 decision that Colorado's Amendment 2 (which was enacted by Colorado voters, mind you) banning civil-rights protections for gay people:

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 and the judgment of the Supreme Court of Colorado is affirmed. It is so ordered.

Now, somebody explain to me: With this kind of precedent coming from top, citing the EPC, and clarifying the stripping of civil rights as making LGBTs "unequal to everyone else," how on earth any state can ban same-sex marriage?

Also: Does anyone know if the Amendment 2 decision has been used as a precedent in any subsequent, related case(s)? (Not having read the full text of Lawrence v. Texas, I'm wondering if it was cited as precedent for overturning state sodomy laws.)

Finally, related to the battle in Massachusetts: If a state supreme court deems a law (or application of a law) unconstitutional, how can the state legally alter its own constitution in an effort to essentially overturn a court decision?

The more I think about this, the more my head hurts. There seems to be no logic whatsoever in the fight against same-sex marriage -- at least as "states' rights" go.

Can any legal scholars help me out here?

[ButterflyBlood]

1. as far as i know, it comes down to this

the decision in Mass (as well as Alaska, Hawaii and Vermont) was based on the STATE constitution. If that constitution is amended, the decision no longer stands.

However, Amendment 2 was thrown out on the grounds of the NATIONAL constitution. So the national constitution does trump the state consitution, but that's not what's in question here in these decisions.

[Sapphocrat]

3. Now my head really hurts...

Okay, so if they amend the Mass. constitution, then the Mass. SJC decision is invalidated. I think I've got that much.

But Amendment 2 was also a voter-approved amendment to a state constitution (Colorado's) -- so how is that any different from Mass. (or AK, HI, & VT)? Couldn't the proposed amendment to the Mass. constitution be thrown out on the same grounds as was Amendment 2?

I must really be missing something obvious here -- which wouldn't surprise me. I'm no expert on this stuff, but I just can't make out the difference between what Colorado did, and what Mass. is aiming to do.

Or maybe the difference is that we have to wait until after Mass. passes its own constitutional amendment, and somebody challenges it. Assuming (for some crazy reason) that the Mass. SJC rejected the challenge (and how could it, since that would fly in the face of its own previous decision?), and the case went all the way to SCOTUS, it seems that SCOTUS would have to overturn the Mass. amendment, in light of Colorado's Amendment 2 decision.

See why my head hurts? :)

[ButterflyBlood]

6. in theory the amendment could be overthrown in court if it was passed

but so far no such amendment has. the court threw out Amendment 2 on the basis that it was unconstitutional under the NATIONAL Constitution. The National Constitution trumps all state laws and constitutions. If it was ruled anti-gay marriage amendments were illegal under the National Constitution the same could happen, but that has yet to occur.

From what I heard though, the amendment was just voted down, 100-98.

[Mairead]

8. An attempt to get around the SJC decision by amending the

Commonwealth's Constitution would run aground, as Colorado's attempt did, on the rock of the Fourteenth's EPC.

DOMA et al. are dead laws walking.

[cardlaw]

2. EPC

Romer v Evans was quoted in Lawrence v Texas.

The Sup Ct has said the EPC can be trumped if the marriage in question offends the public policy of the state.

[Sapphocrat]

4. More confusion here...

The Sup Ct has said the EPC can be trumped if the marriage in question offends the public policy of the state.

Does that apply solely to marriage, as far as SCOTUS is concerned? Because if SCOTUS meant it in a broader, general context, then I would think it would apply to state sodomy laws as well -- in which case I won't be able to fathom how Lawrence v. Texas was overturned, since it obviously "offends the public policy" of numerous states.

Btw, welcome to DU! :hi:

On edit: Oh, yeah, I forgot about Romer v. Evans. Shame on me! I know that case all too well!

[cardlaw]

11. I'm going to have to

defer to someone else...Con Law isn't until next year! :)

[Mattforclark]

16. I think you are misunderstanding it

I think you are misunderstanding it...

Here is an explanation of that argument (one that I personally disagree with of course, but it will probably be used - know thy enemy)

http://www.scwu.com/news/static/106972769693507.shtml

"Does that apply solely to marriage, as far as SCOTUS is concerned?"

It applies to all legal documents, I think. But I am not entirely sure.

"Because if SCOTUS meant it in a broader, general context, then I would think it would apply to state sodomy laws as well -- in which case I won't be able to fathom how Lawrence v. Texas was overturned, since it obviously "offends the public policy" of numerous states."

It does not apply to the sodomy laws because you do not apply for a legal document to engage in sodomy. If Texas granted a "sodomy license" for example, then (under this argument) Alabama would not have to recognize that license. Same goes with marriage licenses, drivers licenses, etc.

[newyawker99]

7. Hi cardlaw!!

Welcome to DU!! :toast:

[cardlaw]

10. thx

:)

[sweetheart]

5. genitals and the right to bear arms

You have a good point. The right to bear arms provides all citizens with their weapons of sexual preference in sexual intercourse. A vibrator is a deadly weapon when moving at 40,000 feet per second...

How we get from the right to bear your sex with whomever, to gay marriage... the second amendment is leaving me short... however This one is rather relevant.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

[dsc]

9. let me take a crack at it

First, amendments to a state consititution would overturn a state supreme court decision. That is what happened in Hawaii and Alaska when they had decisions that found a right to same sex marriage. I would assume that either those cases weren't litigated at all or were thrown out.

Second, after Romer, there was a Cincinnati case where an amendment to the city charter similar to amendment 2 was passed. It was upheld. My guess is that these marriage cases would be distinguished on grounds of tradition or some other reason. No case has ever found rights for gays on equal protection grounds. Lawerence was based on privacy. That also would be a somewhat distinguishing factor. I wish it weren't so, but it is.

[cardlaw]

12. Until gays

are a "protected class" who can fall under the "strict scrutiny" test, SCOTUS can't/won't help on a lot of issues. I don't know enough to elaborate on that; just going on what I hear at the ol law school.

[Mattforclark]

13. Yes, in substantive due process cases

the court either uses the "rational basis" test or the "strict scrutiny test." There is also an intermediate test "intermediate scrutiny" which I think is used for women, but anyway. To pass the rational basis test, the state must provide some sort of rational justification linking a law to a public policy goal. Almost everything and anything can pass this test. For the most part it is economic regulation cases for which this test is used.

"strict scrutiny" on the other hand is applied when there are "suspect classes" at risk. For the most part this is race. The state must provide a "compelling interest" to pass this test. An example of the type of of law that must pass this test is affirmative action.

See

http://classes.lls.edu/archive/manheimk/114d3/echarts/suspect.htm

for a flow chart (there are also lots of other related flowcharts in the echarts directory http://faculty.lls.edu/~manheimk/cl2/fcharts1.htm).

[Mattforclark]

14. The language in Lawrence goes a long way towards

making sexual orientation fall under the "strict scrutiny" test, but I don't think it has really been declared by the court that Homosexuals are a supspect class, only that they cannot be treated as 2nd class citizens.

[cardlaw]

15. i.e. the reason

Repubs don't want to add sexual orientation to ENDA or pass hate crimes legislation. It would only further a finding of gays as a suspect class.

[Mattforclark]

17. Yeah, pretty much

Similar to the reason why they opposed the ERA (to keep women in the "intermediate scrutiny" class). At this point gays might be at something approaching the intermediate class, but I dunno.

Depsite the seemingly bullet proof constitutional case in favor of same sex marriage (if you just read the constitution but not past cases), there are legal loopholes, and they will be exploited by the opposition.