In the 1996 case Romer v. Evans, the majority (joined by Justice Kennedy, who wrote the opinion of the Court) struck down Colorado's "Amendment 2" which "preclude[d] all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." The case was a big win for gay rights - noted as a GAY RIGHTS RULING in the New York Times.
The Court agreed that targeting a class and specifically removing from them any constitutional protections is prohibited. From the beginning of the latest filing in Perry v. Schwarzenegger, the Prop. 8 case, they make the argument that their case is the same as Romer.
Class-based balkanization and stigmatization of our citizens is flatly incompatible with our constitutional ideals. "[T]he Constitution ‘neither knows nor tolerates classes among citizens.’" Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). The tragic time has long passed when our government could target our gay and lesbian citizens for discriminatory, disfavored treatment—even imprisonment—because those in power deemed gay relationships deviant, immoral, or distasteful. Proponents’ own expert acknowledged that the principle of "equal human dignity must apply to gay and lesbian persons." SER 287. "In respect of civil rights, all citizens are equal before the law." Plessy, 163 U.S. at 559 (Harlan, J., dissenting)
And that:
The absence of any rational basis for Proposition 8—together with the evidence of anti-gay rhetoric in the Yes on 8 campaign—leads inexorably to the conclusion that Proposition 8 was enacted solely for the purpose of making gay men and lesbians unequal to everyone else. Because a "bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest," Romer, 517 U.S. at 634
It's an interesting and compelling argument. They repeatedly cite Romer and other majority opinions written by Justice Kennedy, and they repeatedly argue that the issues - disallowing a class from the laws and protections that others receive - are similar enough in both cases that Perry is like Romer.
They argue that the proponents of Prop. 8 - like the proponents of Colorado's Amendment 2 - want to "draw a line around" gay citizens and exempt them from its benefits and privileges:
From the very first sentence of their opening brief, Proponents make clear that their case hinges upon application of a version of rational basis review that a court might apply to everyday economic legislation. Under this type of rational basis review, Proponents contend, a State may "draw a line around" its gay and lesbian citizens and exclude them from the entire panoply of state benefits, services, and privileges so long as one can imagine a conceivable set of facts that would justify providing those benefits only to heterosexual persons.
This is a brilliant argument and I'll write about two of the most important reasons:
- Justice Kennedy wrote the majority opinion in the Romer case, and later in Lawrence v. Texas and it's important to get his vote. That's why the Boies/Olson team have used so many of Kennedy's opinions all along in briefs in this case. It's why Judge Walker's opinion in District Court used so much of Kennedy's words. They see the case reaching the Supreme Court and they want the so-called swing justice to be backed into a legal corner in this case. By arguing "you've said this, now are you going to dare to go back on your word?" they're forcing Justice Kennedy to either vote their way or overturn a decade of his precedents.
- A young attorney named John Roberts worked on the Romer case. He did this pro bono and behind the scenes, mostly serving as a mock Supreme Court justice who asked questions of the attorneys. He gave advice, and, obviously, they won. (I've read that part of the advice he gave them was to argue that in order to rule their way on the case, the Supreme Court did not need to overrule Bowers v. Hardwick. The Supreme Court asked, they repeated Roberts' advice, and they won. Bowers was overturned later, in 2003's Lawrence v. Texas.
Also interesting to me was the fact that they argued that relatively recent precedents would suggest that this case isn't foreclosed by binding precedent. There was a case in the '70s, Baker v. Nelson in which the Supreme Court dismissed a same-sex marriage case "for want of a substantial federal question." The attorneys argue that Romer and Lawrence change that precedent:
The Supreme
Court’s nearly forty-year-old summary order in Baker v. Nelson, 409 U.S. 810 (1972), has been undermined by numerous jurisprudential developments—most notably, the Supreme Court’s decisions protecting gay men and lesbians from discrimination in Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996).
And that a case decided last year by the Supreme Court potentially strengthens Lawrence:
Nor is the jurisprudential force of Lawrence limited to laws that target the conduct of gay and lesbian individuals, rather than those, like Proposition 8, that single them out as a class for disfavored and discriminatory treatment. See Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2990 (2010) ("Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].").
It's a good strategy to take: arguing that Prop. 8 is nothing more than a "bare desire to harm a politically unpopular group."