Proposition 8 ruling: Did Colorado's anti-gay Amendment 2 sow seeds for legal gay marriage?

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Yesterday, the 9th Circuit Court of Appeals declared unconstitutional California's Proposition 8, which banned same-sex marriage in the state. But the ruling, on view below, has a distinctly local flavor, since the jurists' argument is largely based on the U.S. Supreme Court's precedent-setting rejection of Amendment 2, a 1992 Colorado measure.

The prominence in the decision of the case known as Evans. v. Romer begs the question: Will the Colorado backers of what was widely reviled as an anti-homosexual initiative unwittingly lead to the broad legalization of gay marriage?

Here's how the ruling introduces the subject:

This is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law. In 1992, Colorado adopted Amendment 2 to its state constitution, which prohibited the state and its political subdivisions from providing any protection against discrimination on the basis of sexual orientation.... Amendment 2 was proposed in response to a number of local ordinances that had banned sexual-orientation discrimination in such areas as housing, employment, education, public accommodations, and health and welfare services. The effect of Amendment 2 was "to repeal" those local laws and "to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances or policies in the future.... The law thus "withdr{ew} from homosexuals, but no others, specific legal protection...and it forb[ade] reinstatement of these laws and policies.

Amendment 2's authors insisted that the initiative didn't discriminate against homosexuals; rather, it simply nixed those laws that made gays and lesbians more equal than the rest of the populace. But Justice Anthony Kennedy, writing for the Supreme Court majority in the case, rejected that assertion. Here's the synopsis from the Proposition 8 ruling:

The Supreme Court held that Amendment 2 violated the Equal Protection Clause because "[i]t is not within our constitutional tradition to enact laws of this sort" -- laws that "single[e] out a certain class of citizens for disfavored legal status," which "raise the inevitable inference that the disadvtage imposed is born of animosity toward the class of persons affected." The Court considered possible justifications for Amendment 2 that might have overcome the "inference" of animus, but it found them all lacking. It therefore concluded that the law "classifie[d] homosexuals not to further a proper legislative end but to make them unequal to everyone else."

Last night's edition of Rachel Maddow's MSNBC program, which included her take on Rick Santorum and his Colorado caucus win, featured plenty of talk about the Proposition 8 ruling via interviews with Ted Olson, the lead counsel arguing that the measure was unconstitutional, and Dahlia Lithwick, a senior editor at Slate. Lithwick, in particular, suggests that the frequent mentions of Evans v. Romer were intended as a bouquet to Justice Kennedy in advance of the Supreme Court's expected decision to weigh in on the proposition down the line. And if Kennedy and company toss Proposition 8, their determination could pave the way for the sanctioning of same-sex marriage elsewhere -- maybe even the state whose voters once approved Amendment 2.

Videos of these segments are followed by the 9th Circuit ruling. The main discussion of Amendment 2 and Evans. v. Romer begins at the bottom of page 42 and continues for more than ten pages.

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Proposition 8 Ruling US Court of Appeals for the Ninth Circuit

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Guest Comment #1
Guest Comment #1

Regardless of a persons sexual orientation/preference they should have the same freedom to marry the person that they love. From my understanding of the arguments given by conservative family groups, religious groups, and homophobic folks around the country is that gay marriage would ruin marriage. Does letting two people marry who have been in a committed relationship hurt marriage? Or does two people who met got drunk/high and get married and get divorced within a month hurt marriage? People keep arguing that this is not a civil rights issue. Well it is. At one point you couldn't marry your lover if you had a different skin color. That changed. At one point the idea that someone could sell you and ignore the fact that you were married with children was seen as okay. Basically Gay Marriage/Same Sex Marriage is this generations marriage fight. We've one all the previous ones, so lets win this one and let ALL Americans get married!

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