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8 comments

1 BARACK THE VOTE  Mon, Jun 28, 2010 3:35:41pm

Wow, that's the second angry wingnut --who I've never seen here before -- to downding me today. Hey Angel, I can handle the downding, but I'd be curious to know what you don't like about the post, if you don't mind.

2 lostlakehiker  Mon, Jun 28, 2010 8:27:23pm

The legal issue here isn't that clear cut. Make an analogy: suppose the University of Virginia were to establish rules protecting pet owners. Would the state of Virginia, as the ultimate owner and manager of the University, have any authority to naysay that? Pet owners are nice people. But who's in charge? And does the 14th amendment mean that once some agent of the State, without any chain-of-command authority to do so, has issued rules on the basis of "because I say so" protecting them, the State itself may not vindicate its authority by striking down the presumptuous rule?

The Colorado case was different. Cities have their own lawful authority. Cities may, without permission from the state, enact all sorts of ordinances. If a city wanted to forbid discrimination within city limits against pet owners, for instance by owners of rental property, they could probably do it.

But the state of Virginia might reason that it, rather than the University's administrators, has the final say on such a question.

Special and particular protection for a class of people is always a withdrawal, in some measure, of protection for the rest. It is, thus, a withdrawal, in some measure, of protections now afforded the citizens of Virginia against discrimination on the basis of race, creed, and color. These remain on the books, but the resources which alone make such protections a reality are limited and are stretched thinner when the list of specially protected classes is enlarged. Therefore, decisions on how large to make the list are not morally or practically trivial. There are on the one-hands, and on the other-hands, to work through. The way we do this, in a Republic, is to allow elected public officials to make the calls on what the rules shall be, and then let judges and juries make the calls on whether the ball was in the net or not.

The SCOTUS has not held that states or cities must enact legislation making gays a particularly protected class. It has held only that if cities do, the state must let such laws stand.

Technical legal arguments for why something is right but it wasn't done right make a lot of people mad, and they especially excite suspicion that the technical argument is just a smokescreen for a different agenda. But our whole edifice of "nation of laws" depends on a willingness of the public and the authorities entrusted with the management of public affairs to play by the rules.

The recently deceased Sen. Robert Byrd understood this and worked for most of his life to explain it to his colleagues and to the public.

I'm not going to down-ding your post. But think about the tension between just getting things done, and preserving a tradition and mindset of respect for the rules. Things done by the book stay done, and they win instant and widespread public consent, if not approval. Your post falls pretty squarely in the "just get it done" column, does it not?

3 BARACK THE VOTE  Tue, Jun 29, 2010 1:44:56am

re: #2 lostlakehiker

re: #2 lostlakehiker

The legal issue here isn't that clear cut. Make an analogy

We don't need to 'make an analogy'. This is from the links provided in the link I gave:
[Link: wonkroom.thinkprogress.org...]

It’s certainly true that the authors of the 14th amendment may not have “contemplated” protecting gay people from discrimination, but the Supreme Court has. Despite Cuccinelli’s rather arrogant attempts to dismiss legal precedent and impose his own vision of the Constitution on America, the Court has found that laws motivated solely by anti-gay animus are unconstitutional — and Cuccinelli is bound by that case whether “the people who wrote and voted for and passed the 14th Amendment” “contemplated” about gays or not.

In 1996’s Romer v. Evans the court ruled that a Colorado law called Amendment 2, which rescinded recently anti-discrimination measures, violated the 14th Amendment’s equal protection clause because animus towards a certain group of people does not constitute “a legitimate governmental purpose.”

“‘[I]f the constitutional conception of `equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’ Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973),” the Court wrote. “Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it.”

I didn't provide all the links because of general principles about not reprinting someone else's post in full. I directed people toward them, but people don't always click through.

I'm not going to down-ding your post. But think about the tension between just getting things done, and preserving a tradition and mindset of respect for the rules. Things done by the book stay done, and they win instant and widespread public consent, if not approval. Your post falls pretty squarely in the "just get it done" column, does it not?

No, it does not. I'm not responsible for people failing to read links, or for their failures of reading comprehension. The point is the SCOTUS precedent and Cuccinelli's arrogance and ignorance. (if not his flatout lying).

As for the ding, I only pointed it out because it was the second time in an hour (and the 3rd time in 18 hours) that a person perviously unknown to me materialised to downding a page of mine (or Jimmah's) and vanish. The weird thing is that he or she appears to have reversed it now.

I don't mind dings in themselves (heh, Kant reference) and certainly not from someone like you who is a legit commenter here. Ding away, I won't take it personally, I promise.

4 BARACK THE VOTE  Tue, Jun 29, 2010 1:49:05am

re: #2 lostlakehiker

The SCOTUS has not held that states or cities must enact legislation making gays a particularly protected class. It has held only that if cities do, the state must let such laws stand.

Uh, what? This is backwards. It's held that you can't discriminate against gay people. That isn't giving them 'special protection'-- laws that would discriminate against them get struck down because they violate the equal protection clause.

5 Varek Raith  Tue, Jun 29, 2010 3:06:40am

I'm proud to say I voted against this jackass.
Wish he lost, though...

6 BARACK THE VOTE  Tue, Jun 29, 2010 5:01:58am

re: #4 iceweasel

Uh, what? This is backwards. It's held that you can't discriminate against gay people. That isn't giving them 'special protection'-- laws that would discriminate against them get struck down because they violate the equal protection clause.

....and, as SCOTUS held in the Colorado case, 1996’s Romer v. Evans, a city can't strike down an anti-discrimination measure on the grounds that it affords 'special protection' to the group that is being discriminated against, i.e., gay people.

You're essentially arguing that the Amendment 2 people in CO were right-- and you're endorsing their interpretation of such laws, the one that SCOTUS rejected. You are endorsing the Amendment 2 CO people's interpretation claiming that anti-discrimination legislation is 'special protection' when you interpret the SCOTUS ruling in Romer v Evans as (your words):

The SCOTUS has not held that states or cities must enact legislation making gays a particularly protected class. It has held only that if cities do, the state must let such laws stand.

That's just false. Here again is the link to the SCOTUS ruling itself, already provided earlier in this comment, and all of this information was available from the beginning to anyone who bothered to read the first link I provided in my page.

U.S. Supreme Court
ROMER v. EVANS, ___ U.S. ___ (1996)
ROMER v. EVANS, ___ U.S. ___ (1996)

ROY ROMER, GOVERNOR OF COLORADO, ET AL. PETITIONERS v. RICHARD G. EVANS
ET AL.
CERTIORARI TO THE SUPREME COURT OF COLORADO
No. 94-1039

Argued October 10, 1995
Decided May 20, 1996

7 BARACK THE VOTE  Tue, Jun 29, 2010 5:23:42am

And this is the section of Romer v Evans that all people who pretend that not discriminating against gays gives them 'special rights' need to read, and read, as many times as necessary:

In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end. See, e.g., Heller v. Doe, 509 U.S. 312, 319 -320. Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment is at once too narrow and too broad, identifying persons by a single trait and then denying them the possibility of protection across the board. This disqualification of a class of persons from the right to obtain specific protection from the law is unprecedented and is itself a denial of equal protection in the most literal sense. Second, the sheer breadth of Amendment 2, which makes a general announcement that gays and lesbians shall not have any particular protections from the law, is so far removed from the reasons offered for it, i.e., respect for other citizens' freedom of association, particularly landlords or employers who have personal or religious objections to homosexuality, and the State's interest in conserving resources to fight discrimination against other groups, that the amendment cannot be explained by reference to those reasons; the Amendment raises the inevitable inference that it is born of animosity toward the class that it affects. Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.

I'm hoping the bolding might help, but nothing will help when people don't even read the link provided, much less the supporting links contained therein.

8 lostlakehiker  Tue, Jun 29, 2010 9:13:42am

You're missing the point of what I wrote. I agree with the SCOTUS ruling in the Colorado case, and with its reasoning. Including the bolded parts. The state of Colorado was out of line in passing a general rule forbidding cities to enact laws protecting gays.

The SCOTUS has not held that states or cities must enact legislation making gays a particularly protected class. It has held only that if cities do, the state must let such laws stand.

That's just false.

There is a world of difference between a state that proceeds to

... disqualification of a class of persons from the right to obtain specific protection from the law


and passive failure to enact such specific protection.

From the beginning of the court's ruling:

The trial court's grant of a preliminary injunction was sustained by the Colorado Supreme Court, which held that Amendment 2 was subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. On remand, the trial court found that the Amendment failed to satisfy strict scrutiny. It enjoined Amendment 2's enforcement, and the State Supreme Court affirmed.


Exactly. Amendment 2 of Colorado stripped gays of the right to participate in the political process and try and get local laws enacted granting them protection, within that local jurisdiction, from certain kinds of discrimination that, in the absence of such a law, would be permitted.

Nothing in the ruling we're talking about held that all municipalities in CO must have such legislation. So it's NOT "just false". It's accurate.


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