You have slightly misquoted me. Yes, the 14th Amendment was ratified to ensure that freed Blacks did not face the obvious discrimination that would in effect keep them in slavery in spite of the 13th Amendment. But the Amendment applies to everyone. The courts found that Amendment 2 effectively cut out a portion of the population from laws preventing discrimination. In other words it was a broad brush that forbid any laws in the state from addressing discrimination relating to sexual preference. That clearly was not the intent of the amendment, as I voted for it along with a majority of the state. But the court said it could have that effect, which permits unequal application of the law, contravening the 14th Amendment. So be it. Homosexuality is not the issue, but the court ruled that such a broad brush could permit massive discrimination in employment, housing and other areas normally considered to be free from discrimination. It truly has nothing to do with the issue at hand.
I responded that the Supreme Court has unconstitutionally expanded the 14th Amendment far beyond its intended limitations. It now applies to gender issues (as in the Citadel and VMI cases). And Romer expanded it to include sex perversity.
Well here is the text of Section 1:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Clearly this Amendment applies to all citizens, regardless of race, gender, religion or other defined groups. I don't know how you can say that, regardless of the reason for the amendment, that it does not apply to everyone. I don't agree with every court interpretation of the Amendment, but then neither does anyone else. Suffice is to say that Colorado Amendment 2, in the eyes of the court, was a law designed to cut out a segment of the population and permit discrimination not permitted with everyone else.
In an effort to justify these judicial power grabs, the court created the doctrine of "legitimate government interest". If the elected branches of government can prove to the Supreme Court that they have a "legtimate government interest" in treating men differently from women (for example) then the court will allow it. Otherwise they won't.
Well the 11th Circuit decision in the Florida adoption case certainly doesn't describe that. The court didn't necessarily agree with Florida, but stated that in the absence of proof to the contrary, they would not substitute their judgment for that of the state of Florida. In other words, Florida had stated a legitimate interest in reserving adoptions for only heterosexual couples. That is somewhat amazing given that Florida permits homosexuals to participate in foster care. So that speaks volumes for a state's legitimate interest.
They get to decide what's "legitimate". The problem is, the voters were supposed to be the ones to decide that on issues outside the scope of the 14th Amendment. It's not the court's place to decide there's no "legitimate" reason for VMI to be all male.
In the VMI case, the state failed to make a compelling argument (as it did in the Florida case) that it had a legitimate reason for keeping women out, especially given the history of women in the armed forces. Certainly it's subjective, because every case is different. But the 14th Amendment was designed primarily to to counter the tyranny of the majority.
Nor is it the court's place to decide that Amendment 2 had no "compelling state interest" behind it. The fact that A) the voters approved it and B) nothing in the Constitution addresses it one way or the other is compelling enough reason for the court to uphold Amendment 2.
Obviously the State of Colorado failed to articulate a compelling state interest in refusing to permit any laws addressing discrimination towards homosexuals. As for the Constitution, the 14th Amendment pretty much sums it up.
So is the class of people in question (pet owners who rent) being victimized by this state amendment? Are they being denied equal protection? No, BECAUSE THERE IS NO OBLIGATION ON THE PART OF THE STATE TO PROHIBIT PRIVATE DISCRIMINATION AGAINST PET OWNERS. If there was such an obligation, I wouldn't have needed to lobby for the law in the first place.
You have developed a rather intricate straw man that no court would consider because as far as I know there has never been a class of people so labeled. Nor is their a history of discrimination against such a class as there has been against other classes including race, gender, religion, national origin, sexual preference, etc. There would not be a compelling state or national interest served. There certainly is with this issue.
And if there were ever such an amendment, certainly the association of pet owners could bring a cause of action and see where it goes.
AND THERE IS NO OBLIGATION FOR THE STATE OF COLORADO TO ENACT LAWS BANNING DISCRIMINATION AGAINST GAYS.
I agree, but that was not the essence of Amendment 2. Amendment 2 prohibited laws from any jurisdiction within the state from enacting laws to prevent discrimination against gays. That is quite different from your statement.
The court's idiotic reasoning in Romer, which was that Amendment 2 prohibited a class of people (homosexuals) from seeking such laws, is an assault on the very concept of constitutional government.
I doubt you would take that position if it were say the Catholic Church who had a history of being discriminated against in a particular state, and a constitutional amendment were passed making sure that no law was enacted to protect the Church against such discrimination.
The very purpose of constitutional limitations on state authority is to erect a barrier to such authority. By definition, that places a barrier on any class of citizens wanting to exert the authority in question.
No state may enact any laws which in effect serve to abrogate those rights contained within the BOR or the 14th Amendment.
A constitutional provision setting Senate terms at six years places a barrier in the way of any class of citizens who want Senate terms to be four years. Is that class of citizens thus victimized by discrimination under the 14th Amendment?
A person has a constitutional right to be free from discrimination unless a legitimate state interest justifies the discrimination. This means all persons. The 14th Amendment in no way protects the interests of persons on the basis of wants. If the class of citizens wants the Senate term to be changed, the Constitution clearly provides guidance on how to effect such change. And it is available to all persons, thus no discrimination.
How ridiculous it would be to make such a claim! Yet the Supreme Court made it regarding homosexuals as a class in Romer, which is easily one of the five most moronic rulings the court ever rendered, and it's why Scalia's dissent is such a classic.
I'm not sure how you reconcile a Senate term of 6 years with the Romer decision where a class of persons were excluded from the same protections available to all other classes. As for Scalia, almost no USSC decision is a 9 to 0 vote. There is almost always a dissenting vote.
You're very wrong about this, and here's where you're making your mistake. You're assuming that because the 14th Amendment applies to everyONE it must apply to everyTHING, and it doesn't. Nor does it apply to every person on a personal level that makes every characteristic of that person an issue for constitutional litigation.
There are numerous examples of this, but one of the best is the existence of the 19th Amendment (female suffrage). It was ratified more than FIFTY YEARS after the 14th. But if the 14th Amendment gives all of us a constitutional right to be free from discrimination (as you claim) why was the 19th Amendment necessary? Why did the Suffragettes spend decades working to amend the Constitution when the 14th Amendment protects us all from "discrimination"?
The answer is very simple. The 14th Amendment doesn't protect us all from every form of discrimination. Did the Supreme Court demand that states provide them with a "compelling state interest" to justify excluding women from voting after the 14th was ratified? Of course not.
This "compelling state interest" concept is a FABRICATION of modern activist judges. It has no constitutional basis whatsoever.
The 14th Amendment didn't prohibit sex discrimination in voting because A) it didn't apply to gender discrimination and B) it didn't apply to voting. Likewise, the 14th doesn't apply to homosexuality, nor does it apply to discrimination by private parties.
How can that be, you may ask? Well, suppose a black woman was kept off a jury because she's black. She could claim racial discrimination on an equal basis with a black man. But if she was kept off for being a woman, the 14th, as written, didn't apply. The 14th applies to everyONE, but not everyTHING. The 14th was actually intended to be a quite modest amendment, not the constitutional revolution it turned into starting with the Warren Court.
You asserted that I created a straw man by fabricating the category "pet owners who rent" as a protected 14th Amendment class. It is a fabricated class, but so are homosexuals. Neither pet owners nor homosexuals are covered by the 14th Amendment AS pet owners or homosexuals. When the Supreme Court in Romer expanded the 14th Amendment to include homosexuals AS homosexuals, it was rewriting the 14th Amendment. My point was that if homosexuals are a class under the 14th, why aren't pet owners? Why aren't high income people a "class" protected from the "discrimination" of progressive taxation? The court in Romer carved out a special set of rules for homosexuals. They basically said that homosexuals can't have any constitutional barriers erected against laws they wish to pass.
But that's absurd. We couldn't even begin to list the different groups of people affected by all the different constitutions in our country.
And, BTW, if it's unconstitutional for a state to amend their constitution to prohibit laws banning discrimination against gays, how can they amend their constitution to prohibit gay "marriage"? Both amendments prevent homosexuals from lobbying for proposals they favor. In fact, the one banning gay "marriage" does actually involve discrimination by government, while Amendment 2 dealt with private discrimination.
Government isn't under any constitutional obligation, under the 14th Amendment or any other provision, to ban discrimination by private parties. Until around 1964, they didn't. Since then, they've passed a ton of laws, really bordering on overkill, banning various forms of private discrimination, but they don't have to. If Congress wanted to, they could repeal the Civil Rights Act of 1964 tomorrow. Any state in the union could likewise repeal their state laws prohibiting, for example, racial discrimination in housing, or gender discrimination in employment.
Most states don't even have laws banning private discrimination against homosexuals, and they don't have to have them. It's perfectly constitutional not to have them. And if it's constitutional not to have them, it's constitutional to put the policy of not having them in the state constitution.
If a state in 1886 had amended their state constitution to ban women from voting, would it have violated the 14th Amendment? Of course not. If it was legal under the 14th to deny women the vote (which it was), how could it be unconstitutional to place that policy in a state constitution?
That's why Romer was such a ludicrous ruling, above and beyond it being unconstitutional. This nonsense about states having to provide the Supreme Court with a "compelling state interest" is just a creation of judicial activists. The Supreme Court isn't interested in banning ALL discrimination, for the simple reason that laws discriminate all the time if you think about it. Is it "discrimination" if a state funds a school for the blind, but not for the deaf? Is it "discrimination" if they fund childbirth, but not abortion? Is it "discrimination" if they ban housing discrimination against homosexuals but not adulterers? Is it "discrimination" to tax some items and not others?
If the courts banned ALL discrimination, society couldn't function. In addition, the liberal judges on the court like some types of discrimination (higher tax rates on the rich, reverse discrimination against white males, restrictions on funding parochial schools).
So our robed princes created the "compelling state interest" doctrine to transfer decision making about discrimination from the voters and their elected representatives to (who else?) liberal judges. If they pesonally support a particular act of discrimination, or if involves some matter that doesn't ideologically interest them, the judges announce that the state has a "compelling interest" to practice the discrimination. If they personally disapprove of a particular act of discrimination, they'll find there's "no compelling interest" for it. Like the unenumerated right to privacy in Griswold and Roe, it transfers societal decision making from us to the judges.
And thus Romer is an utter abomination.