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Romer V. Evans: Equal Protection That Is Neither Equal Nor Protecting? … Discuss.

Posted by Chad on August 9, 2005

Ace got me started thinking on this.

There seems to be a growing brou-ha-ha over Supreme Court nominee Roberts’ pro bono work on Romer v. Evans as far as conservatives are concerned. While I feel that Roberts’ role in this case is being blown out of proportion (a couple of hours consulting on a pro bono case hardly indicates a solid stance on gay rights one way or the other as far as I’m concerned) , the little reading I did on the case made me wonder….

The case dealt with an amendment to Colorado’s constitution that was passed with a 53% majority vote, saying:

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.

In effect, “Your sexual orientation doesn’t make you special, so don’t try using it as a crutch.”

I’m all for that. I don’t want special rights because I’m gay. I want equal rights because I’m an American citizen.

However…. Let’s say a landlord had a policy where he wouldn’t rent to gays and thus denied a lease to a gay couple. That has an air of unconstitutionality to it, no? Were that amendment still in place, would the couple have any legal recourse? (Yes, I already posed this question on Ace’s site – too tired to think of another example. Deal with the unoriginality.)

I honestly don’t know….

The issue of the case itself is moot as SCOTUS overturned the amendment, but the issues it dealt with are still going strong today. Did the Supreme Court cross the line and “legislate from the bench”? If discrimination cannot be claimed based on sexual orientation, should there even be talk of an FMA? What about hate crimes legislation?

It’s a very fine line between pandering to the minority and catering to the majority.



3 Responses to “Romer V. Evans: Equal Protection That Is Neither Equal Nor Protecting? … Discuss.”

  1. Excellent post, and intriguing questions.

  2. KJ said

    Limited point: There is no constitutional question if a private landlord discriminates on the basis of anything. Equal protection only applies to the government (state action is required).

    Legislation may prevent discrimination, but the Constitution does not. The only thing I would say applies to private persons is the 13th Amendment (slavery ban).

  3. Chad said

    I realized the “private” issue after I posed the question. They could just as easily discriminate against anyone with blonde hair. That doesn’t mean that blonde’s should have legislation passed to protect them.

    However… I feel that in today’s world, homosexuals are more at risk for this sort of thing than people of a certain hair color.

    It’s a double-edged sword for me ’cause I don’t want rights afforded to specific people for specific reasons, but I also don’t want people to have the ability to discriminate based on certain traits.

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