Montana has become the second state to try to pass a law forbidding local governments from passing ordinances to protect gays and lesbians from discrimination. Tennessee is the other one.
The Republican majority on the House Judiciary Committee approved a bill Monday that would effectively overturn Missoula’s 2010 ordinance banning discrimination against city residents based on their sexual orientation and gender.
House Bill 516 by Rep. Kristin Hansen, R-Havre, now moves to the House floor for debate this week.
It would prohibit local governments from enacting ordinances or policies that seek to protect residents from real or perceived discrimination based on their sexual orientation and gender as the cities of Missoula did through an ordinance and Bozeman did through a policy.
But this is not a new idea. Colorado tried it in the early 90s and the Supreme Court delivered a major smackdown in a 6-3 ruling authored by Justice Anthony Kennedy in Romer v Evans. It’s one of the more fascinating cases for con law geeks like me because the court explicitly applied the rational basis test rather than strict scrutiny and still overturned the law. This is very unusual.
If the case were heard again today, it would almost certainly still go the same way — by a 5-4 margin rather than 6-3. Kennedy, Breyer and Ginsburg would still be in the majority, Scalia and Thomas would still be in the minority. Alito and Roberts would join them in the minority and Sotomayor and Kagan would presumably vote with the majority.
I’ve always laughed at this sentence from Scalia’s dissent:
[Amendment 2 is] a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.
Translation: “Bigots from Colorado want to make sure that no one other than them can possibly urge the government to pass legislation to protect their rights. And I see no reason not to let them do it.”