Wednesday, November 10, 2004

Unconstitutional. As has been extensively noted, since activist courts* have taken to redefining "marriage," persons in a number of states have adopted constitutional amendments seeking to fix the definition of marriage as between one man and one woman. See, for example, this Jeff Jacoby column.

This should fix the problem, right? At least as far as the individual states are concerned, right? I mean what's higher than the constitution?

No, this doesn't fix the problem.

Matt Foreman, the executive director of the National Gay and Lesbian Task Force, is quoted as saying "We'll win some states and we'll lose some states, but eventually the Supreme Court is going to look at the Bill of Rights and isn't going to give a damn what's in any of these state constitutions."

And he is quite right.

In Romer v. Evans, (1996) the U.S. Supreme Court struck down Colorado's Amendment 2 to that state's Constitution. According to the majority opinion, "Amendment 2, in explicit terms . . . prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians." Or, as Justice Scalia observed in his dissent, the amendment was adopted "to prohibit[] special protection for homosexuals." The court held that in adopting this amendment to the constitution, the state was discriminating agains gays: "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."

In Romer, the Supremes declared themselves to be above the law and seized the authority to strike down state constitutional provisions that the judges simply didn't like.**

You can bet that if they've done it once, they will do it again. The Supreme Court doesn't give a damn what's constitutional.

*In another, not-to-remote era, courts affirmed the definition of marriage as being between a man and a woman. For example, in Singer v. Hara, 11 Wn. App. 247 (1974) the Washington Supreme Court noted in passing, "The operative distinction lies in the relationship which is described by the term 'marriage' itself, and that relationship is the legal union of one man and one woman." (declining to apply the state's Equal Rights Amendment to homosexual marriage). However, in Hawai'i, Vermont, and most recently in Massachusetts, judges have begun re-writing the law.

** For more reading, see this issue of First Things which led to open warfare between the neo-cons and the theo-cons.

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