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To: ConsentofGoverned

I'm a Roberts supporter but this is a little worrisome. The court's ruling in this case was horrendous, and could set the precedent for overturning all the gay "marriage" bans that have been enacted by state voters recently.

Several years ago, Colorado voters approved a state constitutional amendment barring the enactment of so-called gay rights laws in their state. The reason for this was that politicians kept passing (or trying to pass) these laws despite public opposition to them. We're seeing a similar thing in California right now where some politicians are trying to engineer gay "marriage" in that state even though voters passed a law banning it.

But in Colorado the voters had not yet acted, so they did so. They approved the amendment banning gay rights laws on a state referendum. By a 6-3 majority, joined in by Justices Kennedy & O'Connor, the court ruled that the amendment was unconstitutional. The reasoning was spurious, and could be used to ban just about any law or amendment the liberals don't like. They argued that an amendment to the state constitution banning gay rights ordinances deprived gays of "equal protection" since they couldn't pass such laws without first repealing the aforementioned amendment. So the presence of the amendment constituted an additional barrier for gays to overcome that, for example, supporters of a law banning discrimination against the elderly wouldn't face.

But that's a ridiculous argument. By definition a constitutional amendment is a barrier. Opponents of free speech, for instance, would have to repeal the first amendment before they could pass their desired laws. The 15th amendment bans racial discrimination in voting. Gender discrimination in voting wasn't banned until many years later via the 19th amendment. But that doesn't mean that in the meantime the 15th amendment was unconstitutional since it placed a barrier on those who would deny blacks the vote while not placing such a barrier on those who would deny women the vote.

The irony of all this is that judicial fiats, which this ruling was, impose barriers on the democratic process just as constitutional amendments do, only WITHOUT public participation in the process. Opponents of abortion, as an example, are denied the ability to pass a ban on abortion because of Roe vs. Wade. The same would be true if there was a legitimately ratified constitutional amendment banning anti-abortion laws, but at least that would have been enacted via legitimate processes.

The Romer vs. Evans case essentially gives the court carte blanche to void any state constitutional amendment they don't like on the grounds that the very presence of the amendment imposes a barrier on those who want to enact laws violating it. It's worrisome if Roberts was involved in this. I hope there's a good explanation.


46 posted on 08/04/2005 6:57:55 AM PDT by puroresu (Conservatism is an observation; Liberalism is an ideology)
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To: puroresu
very good post- I guess thats why so many of us feel SCOTUS is the last stand against the destruction of the republic - but I am hopeful that SCOTUS itself is controlled by return to the original intent of the founding documents..marberry be damned.
48 posted on 08/04/2005 7:01:14 AM PDT by ConsentofGoverned (A sucker is born every minute..what are the voters?)
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