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.

As we noted at the time, the 9th Circuit leaned heavily on Romer v. Evans, the 1996 Supreme Court ruling that wiped out Amendment 2. Here's how the subject is introduced in the appeals court opinion, also shared here:
This is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law. In 1992, Colorado adopted Amendment 2 to its state constitution, which prohibited the state and its political subdivisions from providing any protection against discrimination on the basis of sexual orientation.... Amendment 2 was proposed in response to a number of local ordinances that had banned sexual-orientation discrimination in such areas as housing, employment, education, public accommodations, and health and welfare services. The effect of Amendment 2 was "to repeal" those local laws and "to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances or policies in the future.... The law thus "withdr{ew} from homosexuals, but no others, specific legal protection...and it forb[ade] reinstatement of these laws and policies.
Amendment 2's authors insisted that the initiative didn't discriminate against homosexuals; rather, it simply scotched those laws that made gays and lesbians more equal than the rest of the populace. But Justice Anthony Kennedy, writing for the Supreme Court majority in the case, rejected that assertion. Here's the synopsis from the Proposition 8 ruling:
The Supreme Court held that Amendment 2 violated the Equal Protection Clause because "[i]t is not within our constitutional tradition to enact laws of this sort" -- laws that "single[e] out a certain class of citizens for disfavored legal status," which "raise the inevitable inference that the disadvtage imposed is born of animosity toward the class of persons affected." The Court considered possible justifications for Amendment 2 that might have overcome the "inference" of animus, but it found them all lacking. It therefore concluded that the law "classifie[d] homosexuals not to further a proper legislative end but to make them unequal to everyone else."
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.

United States v. Windsor

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Proposition 8 Ruling US Court of Appeals for the Ninth Circuit

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts