by Malcolm Lazin
Executive Director, Equality Forum
A great paradox of the 2008 federal election in which the first African American was elected President is that three states passed referenda to amend their respective state constitutions to prohibit same-sex couples from marrying and Arkansas passed a referendum to preclude unmarried couples from adopting or fostering children.
Eighteen states allow their constitutions to be amended through ballot initiatives without consent by the legislative and/or executive branches. The remaining states enable their constitutions to be amended by the public after legislative and/or executive action. Some states require majority approval and others mandate voter approval ranging from 60 percent to two thirds approval.
The same-sex ballot initiatives exemplify the danger posed to all citizens by stripping away of fundamental rights from marginalized citizens and the importance of the judiciary in protecting civil liberties.
Barack Obama was born in Honolulu on August 4, 1961. In 1961, 16 states not including Hawaii had laws that made miscegenation a crime and branded the offspring of a black and white couple as a bastard. In 1967, the US Supreme Court ruled in Loving v. Virginia that miscegenation laws were unconstitutional because they violated the due process clause and equal protection of the 14th Amendment.
Given prevalent racial animosity in 1961, had racists tried to amend state constitutions to prohibit miscegenation, those ballot initiatives would have been overwhelmingly passed in most states.
During World War II, had xenophobes tried to amend state constitutions to prohibit the civil liberties of Japanese Americans, they would have been easily approved. State amendments to limit civil liberties could have been readily enacted against immigrants such as the Irish, Chinese and Jews, among others.
A democracy is measured by how it protects minority religious, political, racial and other individual differences. The US Supreme Court has addressed these concerns in various decisions including Loving v. Virginia and Romer v. Evans.
In Loving, which overturned Virginia’s Racial Integrity Act, Chief Justice Warren writing for a unanimous court ruled that marriage is one of the “basic civil rights of man” and that to deny this fundamental freedom on such unsupportable basis as racial classification deprives citizens of liberty without due process of law.
In 1992, Romer v. Evans arose from a ballot initiative titled Amendment 2 to the Colorado constitution that prevented any municipality from protecting homosexual citizens from discrimination. The initiative passed with 53.4% approval. Amendment 2 was spearheaded by Colorado for Family Values that claimed the anti-discrimination protections for homosexuals in Aspen, Boulder and Denver were special rights that needed to be constitutionally banned.
The Colorado Supreme Court overturned the amendment as a violation of equal protection and ruled was subject to strict scrutiny in which the state needed to prove a compelling state interest, which it had failed to demonstrate. Colorado appealed the decision to the US Supreme Court. In 1996, in a 6 to 3 decision, Justices Stevens, O’Connor, Kennedy Souter, Ginsberg and Beyer affirmed the Colorado Supreme Court decision.
Justice Kennedy writing for the majority held that the discrimination in Amendment 2 neither met the strict scrutiny test nor the lower rational relationship to a legitimate state interest. Justice Kennedy stated, “It is not within our constitutional tradition to enact laws of this sort.” He found that laws of this kind “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected” and was born of a “desire to harm” homosexuals.
Proposition 8 that prohibits same-sex marriage was passed with 52 percent approval. The proposition did not require consent by the legislative and/or executive branches. Proposition 8 was principally funded by out of state interests including tens of millions by the Mormon Church. The California Legislature had passed a bill providing for same-sex marriage. Gov. Schwarzenegger vetoed the measure because he believed the issue should be decided by the California Supreme Court.
In 2008, the California Supreme Court decided that the prohibition against same-sex couples from marrying violated the California constitution and was subject to the strict scrutiny. Gov. Schwarzenegger and other prominent California Republicans were among in-state opponents to Proposition 8.
While the four state initiatives represent a setback, there is momentum for full equality including same-sex marriage for gay men and lesbians. In 2000, 61 percent of Californians opposed and 39 percent supported same-sex marriage. In 2008, those percentages respectively shrunk to 52% v. 48%.
Lambda Legal, ACLU and others are planning a challenge in the California state courts to the constitutionality of Proposition 8. Ultimately the California Supreme Court decision could reach the U.S. Supreme Court.
Five of the six U.S. Supreme Court justices who concurred in Romer v. Evans remain on the court. We pray for their continued wisdom.