Dispatches from the Creation Wars

Montana joins TN in Anti-Gay Legislation

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.”


  1. #1 A little common sense
    March 1, 2011

    Reply to #27 posted by Chris from Europe.

    Okay, with large enough majorities and a resulting Congress that obeys and enough states where the same applies, you can vote away protected rights.
    But the statement “What the majority wants, the majority gets.” is clearly wrong.

    I believe, Chris, that you just said, “Yes, you are right, but you are still wrong.” There have been enough times when a large enough majority and compliant Congress existed simultaneously to pass seventeen amendments in addition to the Bill of Rights. That’s about one amendment every 13 years.

    Okay, there are Justices and legal scholars that believe it, but it is total nonsense, because one idiot says so.

    It’s not just one idiot or just me, it’s many legal scholars. John Roland wrote, “The logic of constitutional republican government is that everyone, not just the courts, and not just public officials, has the duty to enforce the law, and, where conflicts in the law arise, resolve those conflicts and apply the correct law. When one of the laws in conflict is the constitution, then the duty is of constitutional review, which is only judicial review when it is judges that happen to do it. It is not an exclusive power of the courts. It is a duty of everyone subject to the Constitution.
    The Constitution did not give the Supreme Court the sole power of reviewing the Constitution, but it has assumed that power without warrant. So really everyone is responsible for constantly and diligently working to require the government to obey the Constitution.

    Binding contracts, of which the Constitution is the first in America, are not open to interpretation, nor can they be changed at a whim…but they can be changed.
    The Constitution or ordinary contracts never ever get interpreted, of course. They work by magic.

    No, they work by having both parties follow both the spirit and letter of the contract. They work through the mutual consent of all parties. They work through the diligence and consistency of the parties.

    First, there is the 14th Amendment, which was never ratified
    Why should we take you serious?

    Because I am telling the truth.
    The 14th is the source of one of the major Constitutional controversies. For your education, you might wish to visit the Fourteenth Amendment Law Library, a subset of Constitution.org, which can be found at http://www.constitution.org/14ll/14ll.htm
    As you will learn, there was little about the ratification of the 14th that was accomplished legally.
    In addition, you might wish to review the Kentucky and Virginia Resolutions for a contemporary view of the Constitution and the powers of the new United States government.
    During the period that the Constitution was being written and ratified, two groups of citizens were contending for different intents and versions of the Constitution. The Federalists wanted a strong central government in the manner of the British model. The anti-Federalists wanted a weak, decentralized Federal government. The anti-Federalists won the argument, and the Constitution was written to severly limit the powers of the Federal government. These discussions may be found here:

    I sincerely hope that these references will be of help to you.

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