Another one that deserves to be preserved for posterity:
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CherokeeNative
Those of you who are following this issue here in Washington might find it interesting to read the 9th Circuit' ruling in Perry v. Brown, http://caselaw.findlaw.com/us-9th-circuit/1593339.html?DCMP=NWL-pro_family It is interesting that many if not all of the reasons argued here by readers were arguments made in this case and the Court addressed each of them:
The 9th Circuit in holding that Prop. 8 violated the Equal Protection Clause stated:
Absent any legitimate purpose for Proposition 8, we are left
with “the inevitable inference that the disadvantage imposed is born of
animosity toward,” or, as is more likely with respect to Californians who voted
for the Proposition, mere disapproval of, “the class of persons affected.”
Romer, 517 U.S. at 634. We do not mean to suggest that Proposition 8 is the
result of ill will on the part of the voters of California. “Prejudice, we are
beginning to understand, rises not from malice or hostile animus alone.” Bd. of
Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J.,
concurring). Disapproval may also be the product of longstanding, sincerely
held private beliefs. Still, while “[p]rivate biases may be outside the reach
of the law, the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429, 433 (1984). Ultimately, the “inevitable inference” we must draw in this circumstance is not one of ill will, but rather one of disapproval of gays and lesbians as a class. “[L]aws
singling out a certain class of citizens for disfavored legal status or general
hardships are rare.” Romer, 517 U.S. at 633. Under Romer, we must infer from
Proposition 8's effect on California law that the People took away from gays
and lesbians the right to use the official designation of ‘marriage’—and the
societal status that accompanies it—because they disapproved of these
individuals as a class and did not wish them to receive the same official
recognition and societal approval of their committed relationships that the
State makes available to opposite-sex couples.
It will not do to say that Proposition 8 was intended only to disapprove of
same-sex marriage, rather than to pass judgment on same-sex couples as people.
Just as the criminalization of “homosexual conduct ․ is an invitation to
subject homosexual persons to discrimination both in the public and in the
private spheres,”
Lawrence, 539 U.S. at 575, so too does the elimination of the right to use the
official designation of ‘marriage’ for the relationships of committed same-sex
couples send a message that gays and lesbians are of lesser worth as a
class—that they enjoy a lesser societal status. Indeed, because laws affecting
gays and lesbians' rights often regulate individual conduct—what sexual
activity people may undertake in the privacy of their own homes, or who is
permitted to marry whom—as much as they regulate status, the Supreme Court has
“declined to distinguish between status and conduct in [the] context” of sexual
orientation. Christian Legal Soc'y v. Martinez, 130 S.Ct. 2971, 2990 (2010). By
withdrawing the availability of the recognized designation of ‘marriage,’
Proposition 8 enacts nothing more or less than a judgment about the worth and
dignity of gays and lesbians as a class.
Just as a “desire to harm ․ cannot constitute a legitimate governmental interest,”
Moreno, 413 U.S. at 534, neither can a more basic disapproval of a class of
people. Romer, 517 U.S. at 633–35. “The issue is whether the majority may use
the power of the State to enforce these views on the whole society” through a
law that abridges minority individuals' rights. Lawrence, 539 U.S. at 571. It
may not. Without more, “[m]oral disapproval of [a] group, like a bare desire to
harm the group, is an interest that is insufficient to satisfy rational basis
review under the Equal Protection Clause.” Id. at 582 (O'Connor, J.,
concurring). Society does sometimes draw classifications that likely are rooted
partially in disapproval, such as a law that grants educational benefits to
veterans but denies them to conscientious objectors who engaged in alternative
civilian service. See Johnson, 415 U.S. at 362–64. Those classifications will
not be invalidated so long as they can be justified by reference to some
independent purpose they serve; in Johnson, they could provide an incentive for
military service and direct assistance to those who needed the most help in
readjusting to post-war life, see id. at 376–83. Enacting a rule into law based
solely on the disapproval of a group, however, “is a classification of persons
undertaken for its own sake, something the Equal Protection Clause does not
permit.” Romer, 517 U.S. at 635. Like Amendment 2, Proposition 8 is a
classification of gays and lesbians undertaken for its own sake.
The “inference” that Proposition 8 was born of disapproval of gays and
lesbians is heightened by evidence of the context in which the measure was
passed.26
The district court found that “[t]he campaign to pass Proposition 8 relied on
stereotypes to show that same-sex relationships are inferior to opposite-sex
relationships.” Perry IV, 704 F.Supp.2d at 990. Television and print
advertisements “focused on ․ the concern that people of faith and religious groups
would somehow be harmed by the recognition of gay marriage” and “conveyed a
message that gay people and relationships are inferior, that homosexuality is
undesirable and that children need to be protected from exposure to gay people
and their relationships.” Id. These messages were not crafted accidentally. The
strategists responsible for the campaign in favor of Proposition 8 later
explained their approach: “ ‘[T]here were limits to the degree of tolerance
Californians would afford the gay community. They would entertain allowing gay
marriage, but not if doing so had significant implications for the rest of
society,’ “ such as what children would be taught in school. Id. at 988
(quoting Frank Schubert & Jeff Flint, Passing Prop 8, Politics, Feb. 2009,
at 45–47). Nor were these messages new; for decades, ballot measures regarding
homosexuality have been presented to voters in terms designed to appeal to
stereotypes of gays and lesbians as predators, threats to children, and
practitioners of a deviant “lifestyle.” See Br. Amicus Curiae of Constitutional
Law Professors at 2–8. The messages presented here mimic those presented to
Colorado voters in support of Amendment 2, such as, “Homosexual indoctrination
in the schools? IT'S HAPPENING IN COLORADO!” Colorado for Family Values, Equal
Rights—Not Special Rights, at 2 (1992), reprinted in Robert Nagel, Playing
Defense, 6 Wm. & Mary Bill Rts. J. 167, 193 (1997).
When directly enacted legislation “singl[es] out a certain class of citizens
for disfavored legal status,” we must “insist on knowing the relation between
the classification adopted and the object to be attained,” so that we may
ensure that the law exists “to further a proper legislative end” rather than
“to make the[ ] [class] unequal to everyone else.” Romer, 517 U.S. at 632–33,
635. Proposition 8 fails this test. Its sole purpose and effect is “to
eliminate the right of same-sex couples to marry in California”—to dishonor a
disfavored group by taking away the official designation of approval of their
committed relationships and the accompanying societal status, and nothing more.
Voter Information Guide at 54. “It is at once too narrow and too broad,” for it
changes the law far too little to have any of the effects it purportedly was
intended to yield, yet it dramatically reduces the societal standing of gays
and lesbians and diminishes their dignity. Romer, 517 U.S. at 633. Proposition
8 did not result from a legitimate “Kulturkampf” concerning the structure of
families in California, because it had no effect on family structure, but in
order to strike it down, we need not go so far as to find that it was enacted
in “a fit of spite.” Id. at 636 (Scalia, J., dissenting). It is enough to say
that Proposition 8 operates with no apparent purpose but to impose on gays and
lesbians, through the public law, a majority's private disapproval of them and
their relationships, by taking away from them the official designation of
‘marriage,’ with its societally recognized status. Proposition 8 therefore
violates the Equal Protection Clause.
The 9th Circuit in holding that Prop. 8 violated the Equal Protection Clause stated:
Absent any legitimate purpose for Proposition 8, we are left
with “the inevitable inference that the disadvantage imposed is born of
animosity toward,” or, as is more likely with respect to Californians who voted
for the Proposition, mere disapproval of, “the class of persons affected.”
Romer, 517 U.S. at 634. We do not mean to suggest that Proposition 8 is the
result of ill will on the part of the voters of California. “Prejudice, we are
beginning to understand, rises not from malice or hostile animus alone.” Bd. of
Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J.,
concurring). Disapproval may also be the product of longstanding, sincerely
held private beliefs. Still, while “[p]rivate biases may be outside the reach
of the law, the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429, 433 (1984). Ultimately, the “inevitable inference” we must draw in this circumstance is not one of ill will, but rather one of disapproval of gays and lesbians as a class. “[L]aws
singling out a certain class of citizens for disfavored legal status or general
hardships are rare.” Romer, 517 U.S. at 633. Under Romer, we must infer from
Proposition 8's effect on California law that the People took away from gays
and lesbians the right to use the official designation of ‘marriage’—and the
societal status that accompanies it—because they disapproved of these
individuals as a class and did not wish them to receive the same official
recognition and societal approval of their committed relationships that the
State makes available to opposite-sex couples.
It will not do to say that Proposition 8 was intended only to disapprove of
same-sex marriage, rather than to pass judgment on same-sex couples as people.
Just as the criminalization of “homosexual conduct ․ is an invitation to
subject homosexual persons to discrimination both in the public and in the
private spheres,”
Lawrence, 539 U.S. at 575, so too does the elimination of the right to use the
official designation of ‘marriage’ for the relationships of committed same-sex
couples send a message that gays and lesbians are of lesser worth as a
class—that they enjoy a lesser societal status. Indeed, because laws affecting
gays and lesbians' rights often regulate individual conduct—what sexual
activity people may undertake in the privacy of their own homes, or who is
permitted to marry whom—as much as they regulate status, the Supreme Court has
“declined to distinguish between status and conduct in [the] context” of sexual
orientation. Christian Legal Soc'y v. Martinez, 130 S.Ct. 2971, 2990 (2010). By
withdrawing the availability of the recognized designation of ‘marriage,’
Proposition 8 enacts nothing more or less than a judgment about the worth and
dignity of gays and lesbians as a class.
Just as a “desire to harm ․ cannot constitute a legitimate governmental interest,”
Moreno, 413 U.S. at 534, neither can a more basic disapproval of a class of
people. Romer, 517 U.S. at 633–35. “The issue is whether the majority may use
the power of the State to enforce these views on the whole society” through a
law that abridges minority individuals' rights. Lawrence, 539 U.S. at 571. It
may not. Without more, “[m]oral disapproval of [a] group, like a bare desire to
harm the group, is an interest that is insufficient to satisfy rational basis
review under the Equal Protection Clause.” Id. at 582 (O'Connor, J.,
concurring). Society does sometimes draw classifications that likely are rooted
partially in disapproval, such as a law that grants educational benefits to
veterans but denies them to conscientious objectors who engaged in alternative
civilian service. See Johnson, 415 U.S. at 362–64. Those classifications will
not be invalidated so long as they can be justified by reference to some
independent purpose they serve; in Johnson, they could provide an incentive for
military service and direct assistance to those who needed the most help in
readjusting to post-war life, see id. at 376–83. Enacting a rule into law based
solely on the disapproval of a group, however, “is a classification of persons
undertaken for its own sake, something the Equal Protection Clause does not
permit.” Romer, 517 U.S. at 635. Like Amendment 2, Proposition 8 is a
classification of gays and lesbians undertaken for its own sake.
The “inference” that Proposition 8 was born of disapproval of gays and
lesbians is heightened by evidence of the context in which the measure was
passed.26
The district court found that “[t]he campaign to pass Proposition 8 relied on
stereotypes to show that same-sex relationships are inferior to opposite-sex
relationships.” Perry IV, 704 F.Supp.2d at 990. Television and print
advertisements “focused on ․ the concern that people of faith and religious groups
would somehow be harmed by the recognition of gay marriage” and “conveyed a
message that gay people and relationships are inferior, that homosexuality is
undesirable and that children need to be protected from exposure to gay people
and their relationships.” Id. These messages were not crafted accidentally. The
strategists responsible for the campaign in favor of Proposition 8 later
explained their approach: “ ‘[T]here were limits to the degree of tolerance
Californians would afford the gay community. They would entertain allowing gay
marriage, but not if doing so had significant implications for the rest of
society,’ “ such as what children would be taught in school. Id. at 988
(quoting Frank Schubert & Jeff Flint, Passing Prop 8, Politics, Feb. 2009,
at 45–47). Nor were these messages new; for decades, ballot measures regarding
homosexuality have been presented to voters in terms designed to appeal to
stereotypes of gays and lesbians as predators, threats to children, and
practitioners of a deviant “lifestyle.” See Br. Amicus Curiae of Constitutional
Law Professors at 2–8. The messages presented here mimic those presented to
Colorado voters in support of Amendment 2, such as, “Homosexual indoctrination
in the schools? IT'S HAPPENING IN COLORADO!” Colorado for Family Values, Equal
Rights—Not Special Rights, at 2 (1992), reprinted in Robert Nagel, Playing
Defense, 6 Wm. & Mary Bill Rts. J. 167, 193 (1997).
When directly enacted legislation “singl[es] out a certain class of citizens
for disfavored legal status,” we must “insist on knowing the relation between
the classification adopted and the object to be attained,” so that we may
ensure that the law exists “to further a proper legislative end” rather than
“to make the[ ] [class] unequal to everyone else.” Romer, 517 U.S. at 632–33,
635. Proposition 8 fails this test. Its sole purpose and effect is “to
eliminate the right of same-sex couples to marry in California”—to dishonor a
disfavored group by taking away the official designation of approval of their
committed relationships and the accompanying societal status, and nothing more.
Voter Information Guide at 54. “It is at once too narrow and too broad,” for it
changes the law far too little to have any of the effects it purportedly was
intended to yield, yet it dramatically reduces the societal standing of gays
and lesbians and diminishes their dignity. Romer, 517 U.S. at 633. Proposition
8 did not result from a legitimate “Kulturkampf” concerning the structure of
families in California, because it had no effect on family structure, but in
order to strike it down, we need not go so far as to find that it was enacted
in “a fit of spite.” Id. at 636 (Scalia, J., dissenting). It is enough to say
that Proposition 8 operates with no apparent purpose but to impose on gays and
lesbians, through the public law, a majority's private disapproval of them and
their relationships, by taking away from them the official designation of
‘marriage,’ with its societally recognized status. Proposition 8 therefore
violates the Equal Protection Clause.
http://www.theolympian.com/2012/02/08/1982400/house-sends-gay-marriage-to-governor.html#storylink=cpy
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