Romer v Evans
Justice Scalia's Dissent
suggests that the
U.S. Supreme Court's Decision,
in this case here,
must seemingly "prohibit"
old laws against POLYGAMY
as now to be seen as
being "Bad law"
Because of the U.S. Supreme Court's Decision in this case, on May 20, 1996, overturning the "Amendment 2" to the state constitition of the State of Colorado, Justice Scalia points out that the argument used in the Court Decision in this case must also then be applied to polygamists as well.
In Justice Scalia's Dissent, Section "III", ninth paragraph forward, these matters of polygamy are pointed out.
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Chronology of the case
November 3, 1992
"Amendment 2"
This is what brought the matter to the Supreme Court in the first place
Colorado voters approved the following as a state constitutional amendment:
NO PROTECTED STATUS BASED ON HOMOSEXUAL, LESBIAN, OR BISEXUAL ORIENTATION.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.
Colo. Rev. Stat., Const. art. II, § 30b (1994 Supp.).
October 11, 1994
The state Supreme Court of Colorado decision
(about which the case would then be brought to the U.S. Supreme Court)
May 20, 1996
SUPREME COURT OF THE UNITED STATES
No. 94-1039
ROY ROMER, GOVERNOR OF COLORADO, ET AL., PETITIONERS v. RICHARD G. EVANS ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO
[May 20, 1996]
No. 94-1039. Argued October 10, 1995-Decided May 20, 1996
Syllabus
KENNEDY, J., delivered the opinion of the Court,
in which STEVENS, O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined.
SCALIA, J., filed a dissenting opinion,
in which (THE CHIEF JUSTICE) REHNQUIST, C. J., and THOMAS, J., joined.
--------------------------------------------------------------------------------
Because of the U.S. Supreme Court's Decision in this case, on May 20, 1996, overturning the "Amendment 2" to the state constitition of the State of Colorado, Justice Scalia points out that the argument used in the Court Decision in this case must also then be applied to polygamists as well.
In Justice Scalia's Dissent, Section "III", ninth paragraph forward, these matters of polygamy are pointed out.
Scalia's Dissent
(Excerpts, related to POLYGAMY issue)
... The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is "forever prohibited." See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, Section 4; N. M. Const., Art. XXI, Section 1; Okla. Const., Art. I, Section 2; Utah Const., Art. III, Section 1. Polygamists, and those who have a polygamous "orientation," have been "singled out" by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local-option, basis--unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.
The United States Congress, by the way, required the inclusion of these antipolygamy provisions in the constitutions of Arizona, New Mexico, Oklahoma, and Utah, as a condition of their admission to statehood. See Arizona Enabling Act, 36 Stat. 569; New Mexico Enabling Act, 36 Stat. 558; Oklahoma Enabling Act, 34 Stat. 269; Utah Enabling Act, 28 Stat. 108. (For Arizona, New Mexico, and Utah, moreover, the Enabling Acts required that the antipolygamy provisions be "irrevocable without the consent of the United States and the people of said State" - so that not only were "each of [the] parts" of these States not "open on impartial terms" to polygamists, but even the States as a whole were not; polygamists would have to persuade the whole country to their way of thinking.) Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Idaho into the Union, found its constitution to be "republican in form and . . . in conformity with the Constitution of the United States." Act of Admission of Idaho, 26 Stat. 215 (emphasis added). Thus, this "singling out" of the sexual practices of a single group for statewide, democratic vote - so utterly alien to our constitutional system, the Court would have us believe - has not only happened, but has received the explicit approval of the United States Congress.
I cannot say that this Court has explicitly approved any of these state constitutional provisions; but it has approved a territorial statutory provision that went even further, depriving polygamists of the ability even to achieve a constitutional amendment, by depriving them of the power to vote. In Davis v. Beason, 133 U. S. 333 (1890), Justice Field wrote for a unanimous Court:
"In our judgment, Section 501 of the Revised Statutes of Idaho Territory, which provides that `no person . . . who is a bigamist or polygamist or who teaches, advises, counsels, or encourages any person or persons to become bigamists or polygamists, or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization or association which teaches, advises, counsels, or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law . . . is permitted to vote at any election, or to hold any position or office of honor, trust, or profit within this Territory,' is not open to any constitutional or legal objection." Id., at 346-347 (emphasis added).
To the extent, if any, that this opinion permits the imposition of adverse consequences upon mere abstract advocacy of polygamy, it has of course been overruled by later cases. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law. See Richardson v. Ramirez, 418 U. S. 24, 53 (1974). Beason rejected the argument that "such discrimination is a denial of the equal protection of the laws." Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. Among the Justices joining in that rejection were the two whose views in other cases the Court today treats as equal-protection lodestars--Justice Harlan, who was to proclaim in Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion), that the Constitution "neither knows nor tolerates classes among citizens," quoted ante, at 1, and Justice Bradley, who had earlier declared that "class legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment," Civil Rights Cases, 109 U. S. 3, 24 (1883), quoted ante, at 14. [3]
This Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice who writes for the Court today. That opinion said: "[A]dverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. . . . See, e.g., . . . Davis v. Beason, 133 U. S. 333 (1890)." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 535 (1993). It remains to be explained how Section 501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not?
Therefore, Justice Scalia's Dissent in this case here shows that, because of the basis on which the U.S. Supreme Court is justifying its Court Decision here of overturning a state constitutional amendment (law) for being "impermissable targeting" of homosexual behavior choosing individuals, then that basis then would equally say that prior anti-polygamy laws and amendments, therefore, also represent the very same thing of "impermissable targeting" of polygamists
(and not even adddressing such polygamists who would do so under the concept of free exercise of religion).
Justice Scalia's Dissent
suggests that the
U.S. Supreme Court's Decision,
in this case here,
must seemingly "prohibit"
old laws against POLYGAMY
as now to be seen as
being "Bad law"
Because of the U.S. Supreme Court's Decision in this case, on May 20, 1996, overturning the "Amendment 2" to the state constitition of the State of Colorado, Justice Scalia points out that the argument used in the Court Decision in this case must also then be applied to polygamists as well.
In Justice Scalia's Dissent, Section "III", ninth paragraph forward, these matters of polygamy are pointed out.
--------------------------------------------------------------------------------
Chronology of the case
November 3, 1992
"Amendment 2"
This is what brought the matter to the Supreme Court in the first place
Colorado voters approved the following as a state constitutional amendment:
NO PROTECTED STATUS BASED ON HOMOSEXUAL, LESBIAN, OR BISEXUAL ORIENTATION.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.
Colo. Rev. Stat., Const. art. II, § 30b (1994 Supp.).
October 11, 1994
The state Supreme Court of Colorado decision
(about which the case would then be brought to the U.S. Supreme Court)
May 20, 1996
SUPREME COURT OF THE UNITED STATES
No. 94-1039
ROY ROMER, GOVERNOR OF COLORADO, ET AL., PETITIONERS v. RICHARD G. EVANS ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO
[May 20, 1996]
No. 94-1039. Argued October 10, 1995-Decided May 20, 1996
Syllabus
KENNEDY, J., delivered the opinion of the Court,
in which STEVENS, O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined.
SCALIA, J., filed a dissenting opinion,
in which (THE CHIEF JUSTICE) REHNQUIST, C. J., and THOMAS, J., joined.
--------------------------------------------------------------------------------
Because of the U.S. Supreme Court's Decision in this case, on May 20, 1996, overturning the "Amendment 2" to the state constitition of the State of Colorado, Justice Scalia points out that the argument used in the Court Decision in this case must also then be applied to polygamists as well.
In Justice Scalia's Dissent, Section "III", ninth paragraph forward, these matters of polygamy are pointed out.
Scalia's Dissent
(Excerpts, related to POLYGAMY issue)
... The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is "forever prohibited." See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, Section 4; N. M. Const., Art. XXI, Section 1; Okla. Const., Art. I, Section 2; Utah Const., Art. III, Section 1. Polygamists, and those who have a polygamous "orientation," have been "singled out" by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local-option, basis--unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.
The United States Congress, by the way, required the inclusion of these antipolygamy provisions in the constitutions of Arizona, New Mexico, Oklahoma, and Utah, as a condition of their admission to statehood. See Arizona Enabling Act, 36 Stat. 569; New Mexico Enabling Act, 36 Stat. 558; Oklahoma Enabling Act, 34 Stat. 269; Utah Enabling Act, 28 Stat. 108. (For Arizona, New Mexico, and Utah, moreover, the Enabling Acts required that the antipolygamy provisions be "irrevocable without the consent of the United States and the people of said State" - so that not only were "each of [the] parts" of these States not "open on impartial terms" to polygamists, but even the States as a whole were not; polygamists would have to persuade the whole country to their way of thinking.) Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Idaho into the Union, found its constitution to be "republican in form and . . . in conformity with the Constitution of the United States." Act of Admission of Idaho, 26 Stat. 215 (emphasis added). Thus, this "singling out" of the sexual practices of a single group for statewide, democratic vote - so utterly alien to our constitutional system, the Court would have us believe - has not only happened, but has received the explicit approval of the United States Congress.
I cannot say that this Court has explicitly approved any of these state constitutional provisions; but it has approved a territorial statutory provision that went even further, depriving polygamists of the ability even to achieve a constitutional amendment, by depriving them of the power to vote. In Davis v. Beason, 133 U. S. 333 (1890), Justice Field wrote for a unanimous Court:
"In our judgment, Section 501 of the Revised Statutes of Idaho Territory, which provides that `no person . . . who is a bigamist or polygamist or who teaches, advises, counsels, or encourages any person or persons to become bigamists or polygamists, or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization or association which teaches, advises, counsels, or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law . . . is permitted to vote at any election, or to hold any position or office of honor, trust, or profit within this Territory,' is not open to any constitutional or legal objection." Id., at 346-347 (emphasis added).
To the extent, if any, that this opinion permits the imposition of adverse consequences upon mere abstract advocacy of polygamy, it has of course been overruled by later cases. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law. See Richardson v. Ramirez, 418 U. S. 24, 53 (1974). Beason rejected the argument that "such discrimination is a denial of the equal protection of the laws." Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. Among the Justices joining in that rejection were the two whose views in other cases the Court today treats as equal-protection lodestars--Justice Harlan, who was to proclaim in Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion), that the Constitution "neither knows nor tolerates classes among citizens," quoted ante, at 1, and Justice Bradley, who had earlier declared that "class legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment," Civil Rights Cases, 109 U. S. 3, 24 (1883), quoted ante, at 14. [3]
This Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice who writes for the Court today. That opinion said: "[A]dverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. . . . See, e.g., . . . Davis v. Beason, 133 U. S. 333 (1890)." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 535 (1993). It remains to be explained how Section 501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not?
Therefore, Justice Scalia's Dissent in this case here shows that, because of the basis on which the U.S. Supreme Court is justifying its Court Decision here of overturning a state constitutional amendment (law) for being "impermissable targeting" of homosexual behavior choosing individuals, then that basis then would equally say that prior anti-polygamy laws and amendments, therefore, also represent the very same thing of "impermissable targeting" of polygamists
(and not even adddressing such polygamists who would do so under the concept of free exercise of religion).
