repeal of antidiscrimination law
rosentha at chapman.edu
Wed Apr 16 20:49:52 PDT 2008
There is perhaps another idea lurking in the passage identified by Professor Bernstein that justifies antidiscrimination laws even if the proper baseline is the benefits of generally applicable laws. The premise of some antidiscrimination laws is that the prevalence of a discriminatory animus toward an identifiable group requires some additional measure of deterrence when it comes to crimes against that group. Without some incremental deterrence of hate crimes, it may be that generally applicable laws are insufficient to provide some identifiable groups with the same level of safety and security enjoyed by others. For example, the generally applicable assault laws may provide insufficient deterrence when it comes to assaults against gays and lesbians -- the special motivations of homphobes may be adequately deterred only by some enhanced punishment in cases involving homophobic motivation. The problem with Amendment 2, accordingly, was that even if a local government enacted a law enhancing punishment for crimes against gays on the view that additional deterrence of those crimes in particular was required in order that gays and lesbians within that jurisdiction could enjoy the same levels of safety and security experienced by others, a statewide majority had prevented it from doing so. Moreover, Colorado could not assert a legitimate interest in discouraging homosexuality by permitting assaults against gays because it had not excluded gays from the protection of its generally applicable assault laws (and, as Professor Scarberry suggests, had Colorado denied gays the protections of generally applicable laws, another kind of equal protection problem might have emerged). Thus, since Colorado could not claim that gays and lesbians were entitled to the same level of security offered by its generally applicable laws, there is, at least in my view, a plausible argument that it also had no legitimate state interest in preventing a local government from offering additional deterrence of bias crimes when the local government found such additional deterrence to be warranted.
Chapman University School of Law
From: DavidEBernstein at aol.com [mailto:DavidEBernstein at aol.com]
Sent: Wed 4/16/2008 7:30 PM
To: Rosenthal, Lawrence; Mark.Scarberry at pepperdine.edu; mstrasser at law.capital.edu
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: repeal of antidiscrimination law
The only sense I can make out of Romer is that the majority starts with the idea that the "neutral" state of affairs is that all recognized minority groups get, and should get, protection from discrimination, including discrimination by private parties. The constitutional baseline, in other words, is antidiscrimination law, which suggests that repealing an existing antidiscrimination law would in fact potentially be an equal protection violation. I base this on the following language from the opinion:
Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.
The idea that there may be a value to "freedom of association" or "property rights" is apparently not on the Court's cognitive map in this case.
In a message dated 4/16/2008 10:14:04 PM Eastern Daylight Time, rosentha at chapman.edu writes:
In my own effort to explain Romer, I argued that the decision, although badly undertheorized, must rest on the fact that the laws that were repealed by Amendment 2 were all local ordinances -- a statewide majority had decreed that those localities that had perceived a need to afford special protections to gays and lesbians could not do so. I argued that a statewide majority had no legitimate governmental interest in regulating the manner in which local governments choose to address what were properly local and not statewide problems -- a proposition with some interesting implications for local government law. This approach also has the virtue of explaining the Cincinnati case, in which a local government was permitted to first enact and then repeal laws protecting gays and lesbians. For anyone interested, the article is Romer v. Evans as the Transformation of Local Government Law, 31 Urban Law. 257 (1999) (also available at http://papers.ssrn.com/sol3/papers.cfm?abstract_!
id=926376 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=926376> ).
If my understanding of Romer is correct, the answer to the student's question that began this thread is no. That was also the answer in the Cincinnati case. See Equality Foundation of Greater Cincinnati v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997).
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