Prop 8 Lawsuit Q&A: Is the Prop. 8 Lawsuit Like Romer v. Evans?

A commenter, Chesley, who read our “Explanation of Prop. 8 Lawsuit for Non Lawyers” asks:

“How and why did the Colorado Supreme Court & the US Supreme Court overturn Colorado’s Amendment 2 (Romer v Evans). Isn’t this the same type of proposition that strips one group of citizens equal rights under the constitution?”

We answer and discuss.

(You  may want to read our explanation of the Prop. 8 lawsuit if you’re not familiar with the legal issues, what follows may make more sense).

A little background on Romer for the uninitiated, in 1992 53% of Colorado voters passed “Amendment 2″ which specifically excluded gays and lesbians from filing employment discrimination claims. Yes, this legalized employment discrimination against gays and lesbians.  In 1996, the U.S. Supreme Court in a 5-4 ruling overturned Amendment 2.

The Prop 8 lawsuit (which is called  Strauss v. Horton ) uses Romer to support it’s larger arguments.  As far as we can tell, there is not much difference between Romer and Prop. 8.  Both cases are about denying a fundamental right to a “disfavored group” (Romer’s language not ours).  In fact, under Romer reasoning, Prop. 8 is even more egregious.  Here’s why:

Under Romer gays and lesbians are not a “suspect class”, that means the law would have been upheld if the Supreme Court found a “rational relationship” between Amendment 2 and a “legitimate state interest.”  This is called the “rational relationship” or “rational basis”  test and is a very low standard, under this test most laws are upheld. Colorado’s Amendment 2 was one of the rare exceptions — as  Justice Kennedy writes in Romer:

Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”

In other words, Colorado’s Amendment 2 could not be explained by anything other than bigotry towards the gay and lesbian community, which is not a “relational relationship” to a “legitimate state interest.”

Under last May’s In Re Marriage Cases which overturned Prop. 22, the California Supreme Court declared gays and lesbians to be a “suspect class” who were denied the fundamental right of marriage.  This means the court cannot apply the low-standard “relational relationship” test, they must use  “strict scrutiny.”

“Strict Scrutiny” is what we refer to in our explanation when we say the “state must have a damn good reason for passing this law and it better not be any more discriminatory than necessary.”   We already know that the California Supreme Court found no good reason for Prop. 22.

Bottom line:  If (and it’s a big if) the California Supreme Court uses Romer as the basis for their decision in the Prop. 8 case, it’s likely they will strike down Prop. 8.  After all, if  the U.S. Supreme Court struck down a state constitutional amendment under the “rational relationship” test, California should strike Prop. 8 under the  “strict scrutiny” test.  Keep in mind though, that Strauss is based on state law not federal law, so the California Supreme Court is not required to use U.S. Supreme Cases.

The Strauss lawyers obviously believe that Romer is fertile ground as they cite it in 3 places in their revised petition:

First they draw this language from the Romer opinion to illustrate the dangers of Prop 8:

As history has shown, even the most serious and sweeping deprivations of human rights often begin with laws that excluded disfavored groups, in incremental fashion, from “ordinary civil life in a free society.” Strauss v. Horton Revised Petition, 26 citing Romer v. Evans (1996) 517 U.S. 620, 63.

Then they use Romer to show how Prop. 8 is incompatible with the basic “foundational principles of our Constitution”:

“…the very novelty of that proposal reinforces its fundamental incompatibility with the foundational principles of our Constitution.  As the US Supreme Court observed in Romer v. Evans a decision that struck down a provision of the Colorado Constitution enacted by initiative that sought to bar gay and lesbian people, but no on else, form the protection of anti-discrimination law – “it is not within our constitutional tradition to enact laws of the this sort…respect for the principle of equal protection explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare.” Strauss Revised Petition 33 citing Romer at 633.

Then  they use Romer to support their argument that Prop 8 was an improper use of the ballot initiative process, citing the Romer language directly::

“It is not within our constitutional tradition to enact laws of this sort.” Romer at 633.  As the Court explained “respect for the the principle of equal protection explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare.” (Id at 633). Just as the provision struck down in Romer confounded our “constitutional tradition and “the rule of law (ibid.), so the attempted use of the initiative process in Proposition 8 to single out a certain class of Californians for disfavored treatment is fundamentally alien to the principle of equal protection and the structure of our constitutional scheme.

Just as the provision struck down in </i><b>Romer</i><b> confounded “our constitutional tradition and “the rule of law”, so the attempted use of the initiative process in Prop 8 to single out a certain class of Californians for disfavored treatment is fundamentally alien to the principle of equal protection and the structure of our constitutional scheme.  Strauss Revised Petition at 34.

Will the Romer argument be compelling? We hope so, but have no way of knowing.  It will be very interesting to see what the opposition briefs look like. We will summarize and explain those as well.

Thanks for the excellent question! Hope we helped!  If we didn’t… ask again, we’ll try to clarify.