From: LASAGA@corral.uwyo.edu (LASAGA)
Newsgroups: soc.motss
Subject: Judge's Ruling (Was:Injunction GRANTED Against Amendment 2 !!YAY!!)
Date: 25 Jan 1993 22:51:22 -0600
Organization: UTexas Mail-to-News Gateway
NNTP-Posting-Host: cs.utexas.edu


tom@flood.com (Tom Chatt) writes:
>TMCCART3@ua1vm.ua.edu (Tracey McCartney) writes:
>| tom@flood.com (Tom Chatt) writes:
>| >If this goes forward and does not get overturned, it will set a
>| >tremendous precedent, establishing sexual orientation as a
>| >"suspect class" for equal protection purposes. The downside is
>| >that the precedent would be so tremendous that it is certain
>| >to be reviewed by the Supreme Court...
>|
>| I am probably mistaken about this, but don't we have to be declared a
>| "suspect class" by the Supreme Court *before* a strict scrutiny test
>| can be applied to laws that discriminate against us? I'll ask one of
>| my law professors today...
>
>Remember, the Supreme Court *reviews* issues, they don't promulgate them.
>There are only a few classes which are decidedly established as
>"suspect classes", but it is not clear that the list is exclusive.
>A trial judge could, I think, rule that some new sort of class meets
>the criteria appropriate for a suspect class. The Supreme Court is,
>of course, in a position of review.
>

Can either of you tell me what the difference is between a "suspect
class" and an "identifiable class"?  Judge Bayless seemed to make a
distinction, but I don't understand why.  

>I'd be really interested in seeing the full text of what Judge Bayless
>said.

Well, the complete ruling is very long, but I did manage to capture
it on videotape when it was re-broadcasted.  Below are some excerpts from
it, that seem pertinent to the current discussion.  Perhaps you can help to
decipher some of what he said, and point out what parts are significant 
from a legal standpoint?!  (Heck, I'd have thought that the fact that 
homosexuals/bisexuals were an identifiable class was pretty obvious, :-)
but it seems that legally this may not be the case...Go figure.)

=========================================================================
From Judge Bayless' verbal ruling (Fri, Jan 15, 1993) on Injunction against
Amendment 2 (transcribed from videotape, so spelling of names is suspect):

"...Now the question is what is the court to do?  First, court is ruling
on a motion for a preliminary injunction only.  I am not ruling on the
constitutionality of Amendment 2.  As a matter of fact, the court may
not at this time rule on the constitutionality of Amendment 2.

[stuff skipped here]

...Second, in ruling, I am following the guidelines that I've outlined 
from Rathke v. McFarland [sp?].

[stuff skipped here]

...What is the state of the law in this court's view regarding the 
constitutionality of such an amendment?  It has been mentioned that the
law is not static.  It has been mentioned that it evolves, it grows,
it changes, and that is true.  I'm going to borrow a few words from
some Justices of the Supreme Court, not about these cases, not about
sexual orientation.  It's about the law.  It's about the law growing
and changing, because I want to put this in a context. 
 
According to Mr. Justice McKenna [sp?] in a case called Weems [sp?] v. 
the United States from a long time ago (1910):  He said, "The clause of 
the Constitution in the opinion of the learned commentators may be
therefore progressive, and is not fastened to the obsolete, but may
acquire meaning as public opinion becomes enlightened by a humane
justice."  

I want to quote from Justice Earl Warren in the 1958 case 
called Trope v. Dulles [sp?].  He was discussing the eighth
amendment, that's cruel and unusual punishment.  He says, "the words
of the eighth amendment are not precise and their scope is not 
static.  The amendment must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society."

What is the law on discrimination?  What has it been?  As I've
mentioned, it started with the 14th amendment which was about
former slaves.  It related to blacks.  It related to race.
It has been largely dominated by racial cases.  The evolution
has developed some legal standards, and they were argued yesterday
and I'm going to now discuss those.

One is that a violation of a fundamental right which involves
something called a "suspect class," or a violation that involves a
suspect class even if it's not a fundamental right, calls for
strict scrutiny by the court.  It's not here.  The plaintiffs haven't
argued it.  It's not for the court to determine it.  We'll go on
to the next.

A second involves what are described as equal protection violations
of fundamental rights.  What are fundamental rights?  THere have been
a lot of cases that have discussed those here.  Fundamental rights
have been deemed to include the right to participation in elections,
the right of access to the courts, the right of privacy and even
the right of interstate travel.  In terms of this issue, the laws
which may burden the fundamental rights of an independently identifiable
group are subject to what is called strict scrutiny of the courts
under this equal protection analysis.

[stuff skipped here]

...The court concludes with regard to the first, that there is a 
fundamental freedom involved with Amendment 2.  The parties themselves
have struggled to identify the fundamental freedom...

[stuff skipped here]

...Two years ago, in 1991, there was a case which was not from
the Supreme Court.  It's been urged, as a matter of fact, it was
urged in closing argument by defense.  It's called Pruitt v.
Cheney [sp?]...It said, "In Palmore [sp?], the Supreme Court
struck down a denial of custody of a child based on social 
disapproval of the interracial marriage of her mother.  In
so ruling, the court said the constitution cannot control such
prejudices but neither can it tolerate them.  Private biases 
may be outside the reach of the law but the law cannot directly
or indirectly give them effect." And it went on to say,"Cleebern
[sp?]...made clear that this principle is not confined to 
instances of racial discrimination reviewed under strict 
scrutiny."  Cleebern was a case of zoning, basically...

[stuff skipped here]

...So the first part has been established. The court concludes
there is a fundamental right here and it's the right not to have
the state endorse and give effect to private biases.

Second question, is there an identifiable class?  Yes.  A lot
of these cases say it's real hard to find an identifiable class.
Not here.  The statute itself, the Amendment 2, defines the
identifiable class.  A lot of these cases say, even though it
is facially neutral, that is to say, you can sell your property
to anybody you want or not sell it to anybody you don't want.
This isn't facially neutral.  This identifies the class right in
the amendment.  So I find that there is an identifiable class.

Now, with regard to the idea that has been argued by defendants
that I can't make this an identifiable class because of Bowers
v. Hardwick [sp? ->Georgia sodomy case], the court concludes that, 
although the term "conduct" appears in there, this is principally 
an amendment which addresses status and not conduct.  Conduct is 
what Bowers v. Hardwick [sp?] said.

I do that based on a case which was not cited by either side.
It's called Robinson v. California.  In that case, it said
you can't make a status a crime even though the conduct is
a crime....

[stuff skipped here]

...Therefore, the court finds that the burden at the hearing
on the merits is going to be twofold.  One, the plaintiffs
must prove the unconstitutionality of this beyond a reasonable
doubt, but, two, the court will look at this under the strict
scrutiny standard and therefore the state will have to show
more than a mere rational basis.  They'll have to show a
substantial and compelling government interest in passing this.

There will be a trial on the merits.  The amendment will be 
reviewed as though it is one involving a fundamental right,
as affecting an identifiable class.  It requires strict 
scrutiny and the two burdens....

[stuff skipped here]

...Will the plaintiffs win?  The court does not know.  Do the
plaintiffs have a reasonable probability, given all this,
given all of the law that the court has examined, do they
have a reasonable probability of proving that amendment 2
is unconstitutional beyond a reasonable doubt?   Yes.

[cheers can be heard from outside the courtroom at this point.]

The burdens of Rathke have been carried out and met by they
plaintiffs.  The motions for preliminary injunction are granted.
And the defendants, the Governor of the state of Colorado, and
the Attorney General of the state of Colorado are enjoined from
declaring Amendment 2 in force and are enjoined from enforcing
Amendment 2 until further order of the court.  This court is
in recess."
=====================================================================

AMEN!!!   :-)


Anyway, the judge said that the issue did not concern a "suspect class" 
because the plaintiffs didn't bring up that issue.  Why is that important,
and why would the plaintiffs need to bring it up?  (pardon my ignorance 
on legal matters)  But the judge also said that Amendment 2 involved an
"identifiable class," and he goes on and on justifying this as though
it were important. 

Also, if the amendment had strictly related to behavior, could it have
then be deemed _not_ to involve an identifiable class?  

-maria