Did gay hate in Colorado lead to Defense of Marriage Act's death?
Yesterday's U.S. Supreme Court decision striking down the Defense of Marriage Act is being lauded as a major step in the march toward true equality for gay men and women in America. But did the rationale for rejecting DOMA grow from Colorado's Amendment 2, a 1992 measure that nixed legislation protecting homosexuals from discrimination? Well, the latest decision (on view below) mentions the Supremes' Amendment 2 spanking in a key context, suggesting that gay hate may have sown the seeds for gay marriage. Details and more below.
Some background: In February 2012, the 9th Circuit Court of Appeals declared unconstitutional California's Proposition 8, which banned same-sex marriage in that state. Yesterday, the Supreme Court allowed the judgment to stand.
On an edition of MSNBC's Rachel Maddow show that followed the Prop 8 decision (we've included clips here), Dahlia Lithwick, a senior editor at Slate. suggested that the 9th Circuit's frequent mentions of Evans v. Romer were intended as a bouquet to Justice Kennedy in advance of the Supreme Court's expected decision to weigh in on the proposition down the line.
And lo and behold, guess who penned the majority decision in United States v. Windsor, the DOMA case. Yep, Anthony Kennedy.
When writing about DOMA, Kennedy cites the following line from the Romer v. Evans decision (which itself is a quote from an earlier case): "l[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.'" And he mentions it again after stating that "the Constitution's guarantee of equality 'must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot' justify disparate treatment of that group." In his view, "DOMA cannot survive under these principles."
Interestingly, Romer v. Evans is also mentioned in two dissents of Kennedy's majority opinion, by justices Antonin Scalia and Samuel Alito, respectively -- proof that the ruling can be read in a variety of ways. Whatever the case, the argument for why Amendment 2 was unconstitutional is very much like the one used seventeen years later to pull the plug on the Defense of Marriage Act -- a link that will likely live on in law books for generations to come.
Look below to read the DOMA decision, followed by the aforementioned Rachel Maddow show segments and the 9th Circuit ruling about Proposition 8 that's now been tacitly endorsed by the U.S. Supreme Court.
More from our News archive: "Proposition 8 ruling: Did Colorado's anti-gay Amendment 2 sow seeds for legal gay marriage?"
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