But in a statewide referendum, Colorado voters adopted Amendment 2 to the state Constitution, which banned 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 affected communities filed suit and a state judge issued a preliminary injunction declaring Amendment 2 invalid. The judge was sustained by the Colorado Supreme Court.
In the U.S. Supreme Court in a 6-3 majority opinion written by Justice Anthony Kennedy said Amendment 2 violated the U.S. Constitution's equal protection clause.
"We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else," Kennedy said. "This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws."
But a group of Prop 8 proponents filed a brief arguing that the Colorado decision, Romer vs. Evans, should be overturned by the modern Supreme Court.
"In light of ... perceived parallels between Romer and this case, the [Prop 8 review] should be granted to re-examine Romer. Indeed, this [Supreme] Court's decision in Romer spawned, and shares many of the same flaws with, the circuit court [of appeals] decision and opinion below.'
The Supreme Court erred by imputing in Romer both "'animus' and 'a bare ... desire to harm a politically unpopular group' to the supporters of Colorado Amendment 2," just as the appeals court did in the Prop 8 case.
Citing Justice Antonin Scalia's dissent in Romer, the brief said Scalia "thoroughly refuted such an imputation when he explained that Amendment 2 is not the manifestation of a 'bare ... desire to harm' homosexuals ... but rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws."
The brief concludes, "Romer stands as one of the premier contemporary illustrations of the degradation of our founder's understanding of a written Constitution in which authorial intent is jettisoned in favor of an evolving ... Constitution based on the policy preferences of the justices."
A brief filed by the city and county of San Francisco takes a different tack.
The appeals court "grounded its view in uncontroverted evidence that Proposition 8's supporters bombarded California voters with statements conveying the message that 'gay people and relationships are inferior, that homosexuality is undesirable and that children need to be protected from exposure to gay people and their relationships," the brief said.
The Prop 8 campaign contained "a message that is rooted in historical stereotypes that have long operated to diminish the dignity of gay people."
In the DOMA case, only section 3 of the act is challenged. Section 3 says, "In determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
Since the Obama administration won't defend the act, the Bipartisan Legal Advisory Advisory Group of the U.S. House of Representatives, or BLAG, has taken up the banner. BLAG represents the GOP leadership, including House Speaker John Boehner, R-Ohio.
Most Popular Stories
- Bipartisan Budget Deal Gets Key Support in House
- GM to Stop Making Autos in Australia
- Clinton to Keynote Annual Simmons Leadership Conference
- Bitcoin Clones Lurch Onto Financial Scene
- Selena Gomez, Shakira Among Top Hispanic Searches
- How Bitcoin and Other Cryptocurrencies Work
- PhD Project Grooms Business Profs
- It's Primary Time in Texas
- How to Survive a Subzero Stranding
- N.M. Dems Say Nonprofit Helping Martinez Campaign