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Legal AnalysisMarriage Equality

Love & the Law: What Is Animus Anyway?

By July 5, 2012No Comments

No Animus Law Allowed

Animus (a-ni-mus) n. hostility or ill feeling.

Animus malus n. evil motive.

Animus was the central rationale for ‘Amendment 2’, a Colorado referendum proposing to change the state’s constitution, and the animus was targeted at Colorado’s LGBT community. However, the Supreme Court has long disliked the blatant taste of animus and so killed Amendment 2 in the Court’s hallowed courtroom at 1 First Street in 1996, with its ruling in Romer v. Evans. As the nails were firmly pounded into Amendment 2’s coffin, the right of LGBT persons to be protected from discrimination was placed squarely on the law books.

The Facts. In the early ‘90’s, several Colorado municipalities passed ordinances prohibiting discrimination based on sexual orientation. The ordinances applied to sectors such as housing, employment, education, and public accommodations. Sounds reasonable, right? Well, the Colorado legislature, speaking for the people of Colorado, thought otherwise and proposed Amendment 2, a referendum that would have changed Colorado’s constitution and repeal the ordinances. In essence, Amendment 2, after it was voted in, prohibited the protections the ordinances provided.

Gay and lesbian Colorado citizens who were also employed by the state along with 3 of the municipalities sued on the grounds that enforcing Amendment 2 would cause the State of Colorado to discriminate against its LGBT citizens.

The trial court and the Supreme Court of the State of Colorado agreed with the plaintiffs. Yet, the state persisted, arguing all the way to the Supreme Court of the United States of America, that Amendment 2 treats LGBT persons just like everyone else, only denying them “special rights.”

Reading the Court’s Opinion, one could almost feel the Court’s bristling at the State’s audacity. The Court stated that Amendment 2 DOES NOT DENY special rights but WITHDRAWS rights from LGBT persons that all other Colorado citizens have with respect to not being discriminated against. The Court explained that the ordinances in question weren’t providing special rights but exemplifying the growing number of municipalities across the country that was codifying the DUTY NOT TO DISCRIMINATE.  As a result, Amendment 2, as the plaintiffs argued, “imposes a special disability on [LGBT] persons alone.” Continuing its admonition to the State’s defense team, the Court said that Amendment 2 not only deprived LGBT persons of protections afforded by the laws designed to eradicate particular discrimination but the referendum also removed protections of general laws that prohibited arbitrary discrimination.

What does this have to do with love, one may be wondering. Well, if discrimination is prohibited on the basis of sexual orientation or gender, then one cannot discriminate against one woman because she loves another woman or one man because he loves another man (ala Lawrence) if the basis of your argument is that laws relating to love (read the right to marry – ala Loving) should be based on heterosexuality.

In the beginning of Romer, Justice Kennedy read from Justice Harlan’s dissent of the infamous Plessy v. Ferguson, stating “the Constitution “neither knows nor tolerates classes among citizens.”” Justice Kennedy anchored Romer stating emphatically that the only reason for the referendum and any law like it would be one based upon animus, and that this type of malicious motive could not be grounds for a legitimate government interest needed to uphold a law under the U.S. Constitution. Case closed. Coffin shut. Rights protected.

The Love & the Law Episodes: Brief Case History | Contraceptives | The Color of Love | The IRS v. NY |
Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 1Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 2

p.s. I went a little out of order here. Bowers v. Hardwick was decided before Romer, but Bowers is more closely related to Lawrence, so please excuse the reasonable digression.

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