From: TMCCART3@ua1vm.ua.edu (Tracey McCartney)
Newsgroups: soc.motss
Subject: Re: Judge's Ruling (Was:Injunction GRANTED Against Amendment 2 !!YAY!!)
Date: 27 Jan 93 05:52:20 GMT
Organization: Home of the @&#^%$* Crimson Tide


 
Since I'm too lazy to erase all the stuff below, I'll give my quick
take on what the judge was saying. Since the amendment indentified a
class (gays and lesbians), it's presumed to be discriminatory. Whether
or not the state can get away with that discrimination depends on the
level of scrutiny applied. And the level of scrutiny depends on whether
the group being discriminated against is 1) a "suspect class," which
we are not, yet... or 2) being denied a "fundamental right," which the
judge seems to believe we are. Strict
scrutiny, which requires that the state have a compelling interest
in continuing this discrimination, is hardest for the state to stand
up to. What compelling reason does the state have to allow discrim-
ination against gays and lesbians? I'm not sure the amendment would
even pass the "rational basis" test...
 
Tracey
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
In article <8951492125011993/A05145/POSSE/1171CD710C00*@mrgate.uwyo.edu>
LASAGA@corral.uwyo.edu (LASAGA) writes:
 
>
>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
>
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