AMERICA'S CHRISTIAN HERITAGE HOMEPAGE
Week 3 - How we got off Track !
52. On November 3, 1992, Colorado voters, with a vote of 53.4 %, had enacted "Amendment 2",
which read: "Neither the state of Colorado, through any of its branches or departments, nor any of
its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any
statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct,
practices or relationships shall constitute or otherwise be the basis of, or entitle any person or class of
persons to have or claim any minority status, quota preferences, protected status or claim of
discrimination. This Section of the Constitution shall be in all respects self-executing.
53. On May 20, 1996, the court ruled 6-3 that Colorado's Amendment 2 was unconstitutional, though
on different grounds from the Colorado courts. Rejecting the state's argument that Amendment 2
merely blocked gays from receiving "special rights", Kennedy wrote: �To the contrary, the
amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the
safeguards that others enjoy or may seek without constraint". Instead of applying "strict scrutiny" to
Amendment 2 (as Colorado Supreme Court had required) Kennedy wrote that it did not even meet the
much lower requirement of having a rational relationship to a legitimate government purpose:
�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."
And: "[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait
and then denies them protection across the board. The resulting disqualification of a class of persons
from the right to seek specific protection from the law is unprecedented in our jurisprudence."
54. Dissenting were Justices Antonin Scalia, William H. Rehnquist, and Clarence Thomas. Scalia wrote:
"[Amendment 2 is] 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. That objective, and the means chosen to achieve it, are [...] unimpeachable under any
constitutional doctrine hitherto pronounced. �
He noted a contradiction with the court's earlier decision in Bowers v. Hardwick, in which it had
ruled that laws outlawing sodomy are not unconstitutional. Following on, �If it is rational to
criminalize the conduct, surely it is rational to deny special favor and protection to those with a
self-avowed tendency or desire to engage in the conduct.�
Against what he saw as judicial activism, he wrote: �Since the Constitution of the United States says
nothing about this subject [homosexuality], it is left to be resolved by normal democratic means,
including the democratic adoption of provisions in state constitutions.�
55. In 1994, the United States Congress passed the Violence Against Women Act of 1994, which
contained a provision for a federal civil remedy to victims of gender-based violence, even when no
criminal charges were filed. That fall, Christy Brzonkala was assaulted and repeatedly raped by
Antonio Morrison and James Crawford, members of the football team at her college, Virginia Tech.
After college proceedings failed to punish Morrison and Crawford, Christy filed suit under the
Violence Against Women Act.
56. In the year 2000, the case, United States v. Morrison, the United States District Court for the Western
District of Virginia held Congress lacked authority to enact the Violence Against Women Act of 1994.
The Court of Appeals for the Fourth Circuit reversed 2-1. The Fourth Circuit reheard en banc and
reversed again, upholding the district court.
57. The Supreme Court affirmed in a 5-4 decision. Chief Justice Rehnquist, writing for the majority, held
that Congress did not have authority to enact the law under the Commerce Clause nor the
Fourteenth Amendment.
58. On September 21, 1996, The Defense of Marriage Act was signed into law by President Bill Clinton
after moving through a legislative fast track and overwhelming approval in both houses of the
Republican-controlled U.S. Congress. Its Congressional sponsors stated, "The bill amends the U.S.
Code to make explicit what has been understood under federal law for over 200 years; that a marriage
is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the
opposite sex."
59. DOMA goes on to state: �No State, territory, or possession of the United States, or Indian tribe,
shall be required to give effect to any public act, record, or judicial proceeding of any other State,
territory, possession, or tribe respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or
claim arising from such relationship.�
60. And closes with �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.''
61. DOMA passed in the House in 1996 by a vote of 342-76 and in the Senate by a vote of 85-14,
and President Clinton signed the measure that year. Sen. John Kerry is the only presidential
candidate to vote against it, and is one of eight members still in the Senate who did so.