Gay Marriage and the Romer Decision

Among the many silly arguments made by the religious right about gay rights, the one found in this article by Charles Colson may take the cake. He says that the court will mandate gay marriage within 2 years without a constitutional amendment, and he traces three cases that allegedly prove this - Casey, Romer and Lawrence. He complains that Kennedy based his opinion in Casey on "a sweeping definition of liberty as the right of a person to determine for himself the meaning of life." You know, as opposed to Colson's definition of liberty, the right of a person to determine what others may do even if their actions have nothing to do with him. Then he writes:

Many feared this definition could embrace anything. Soon enough, it did.

In 1995 the Court struck down a democratically enacted state referendum in Colorado denying special civil rights based on sexual orientation. Kennedy wrote the opinion, Romer v. Evans, saying the vote of the people demonstrated "animus," that is, bigotry, against homosexuals.

Except that Romer had nothing to do with Casey. The Romer decision was a straight equal protection clause case, it had nothing to do with Kennedy's definition of liberty. And you have to love Colson's invocation of those infamous "special rights". What "special rights" were gays demanding in the case? Actually, none. Romer did not extend any rights at all. All it did was prevent the state of Colorado from locking gays out of the political process.

That's right. A little history on Romer is important here. After several local governments in Colorado passed laws forbidding discrimination against gays in things like education, public accomodations, and health services, a referendum was passed that forbid all such laws at the local or state level in that state. Now here's the really funny part of this claim - all of those forms of discrimination are forbidden when it comes to religion or race. Which means that Colson himself already has all the "rights" he is seeking to deny to homosexuals. Colson cannot be discriminated against in any of those areas by virtue of his religious beliefs. In other words, those "special rights" that he seeks to deny to gays are rights that he has himself by virtue of his religion. What exactly is "special" about them, then? Everyone else has them and has had since the Civil Rights Act; homosexuals are denied them. But in Colson's, and most religious righters', twisted reasoning, homosexuals wanting the same rights that he takes for granted amounts to wanting "special" rights.

The key to Romer was that the amendment locked gays out of the political process entirely. It meant that that gays, alone among all minority groups, could not lobby the government for protection of their rights - again, protections that blacks lobbied for and won, and protections that religious groups lobbied for and won. As far as the claim of animus goes, the court was right. Can you imagine a state passing a law that said that no law may ever be passed that protects blacks from discrimination, even in public accomodations or healthcare? Would that law be motivated by bigotry? Of course it would.

Tags

More like this

The whole "special" rights argument is such a crock. I think my favorite example was listening to a black, rightwing "christian" whining about special rights for "those queers." It was very uncool to most present when I said that we should eliminate special rights for african americans and the religious too - following that logic. Occasionaly people get it when you put it to them that way - usualy they just get offended, with no clue how they might be offensive themselves.

It is utterly beyond my ken how any American citizen could "complain" about the definition of liberty Colson attributes to Justice Kennedy. Isn't this essentially the very meaning of the word as the Founders understood it? Isn't that what "freedom of conscience means?"

Colson and his ilk are perfect examples of the very forces Jefferson had in mind when he wrote, "I have sworn upon the altar of God eternal hostility against every form of tyranny imposed upon the mind of man." They must be opposed at every turn, fought with every ounce of strength.

Romer was wrongly decided, not because Kennedy's opinion was wrong, but because it was unnecessary. Last time I checked, the First Amendment still protected the right to "petition for the redress of grievances," which the Colorado amendment was certainly attempting to prevent. If the ostracised class had been "Left-handed albino Opus Dei monks" perhaps this would have been clearer.

That being said, it is clear that Kennedy (and Souter) have become the chief proponents of liberty on the court. Why this should be a bad thing is unclear.

And, believe it or not, Colson fashions himself, and is held in such regard by most of the RR as a deep thinker, an intellectual.

That goes a long way in explaining a lot of their logic... or the lack thereof!

kehrsam wrote:

Romer was wrongly decided, not because Kennedy's opinion was wrong, but because it was unnecessary. Last time I checked, the First Amendment still protected the right to "petition for the redress of grievances," which the Colorado amendment was certainly attempting to prevent. If the ostracised class had been "Left-handed albino Opus Dei monks" perhaps this would have been clearer.

I'm not sure why you think Romer was wrongly decided, in light of what you said here. The state law was overturned.

The only way I can make any sense of the claim that treating gays equally under the law is a form of "special rights" is if homosexuality is not put in the same category as heterosexuality -- types of sexual orientation -- but is classified with pedophilia, theft, murder, and battery as a form of harmful, destructive criminal behavior. Unlike their fellow muggers, vandals, and rapists, gay people get "special privileges." Landlords have to rent to them, people have to hire them, and so forth.

See, they want to be treated *differently*, and that is so unfair ...

kehrsam wrote:

Romer was wrongly decided, not because Kennedy's opinion was wrong, but because it was unnecessary. Last time I checked, the First Amendment still protected the right to "petition for the redress of grievances," which the Colorado amendment was certainly attempting to prevent. If the ostracised class had been "Left-handed albino Opus Dei monks" perhaps this would have been clearer.

Ed wrote:

I'm not sure why you think Romer was wrongly decided, in light of what you said here. The state law was overturned.

I think kersham is arguing that it was not an equal protection case, but rather a First Amendment case. However, IIRC, the decision was that the Colorado state Amendment was wrong because it a)prevented the very redress of grievances that kersham notes and b)it was aimed at a specific group, which violates the 14th amendment equal protection requirements.