Today in Supreme Court History: May 20, 1996

5/20/1996: Romer v. Evans is decided.

Comments

[Mr. Bumble]

Has this feature runs its course?

[Stupid Government Tricks]

It was kind of interesting the first year, except that by limiting it to 100 cases, he had to fill it out with 265 pieces of fluff like birthdays, oral argument days + decision days, wars, and so on.

Capt Crisis aka Dan S made it much better, but once he'd been around the calendar a few times, he apparently got tired of just copy pasting from his own website.

So yeah, pretty much. Even a new edition of their book wouldn't change more than a few days a year, and it's too soon to throw in all the Trump cases.

[SMP0328]

As it's the reason almost anyone reads the comment section of a Today in Supreme Court History post, here's today's cases from captcrisis.com:

Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. 299 (decided May 20, 2019): drug manufacturer liable under state law failure to warn theory because no “clear evidence” of the defense that it notified FDA of risk of side effect (osteoporosis drug carried risk of unusual femoral fracture) with the FDA then rejecting its proposal to add warning to label

Romer v. Evans, 517 U.S. 620 (decided May 20, 1996): Colorado amended its constitution to prohibit any action designed to protect gay people from discrimination. (In other words, you must be allowed to discriminate!) The Court holds that this violated the Equal Protection clause. Notable as the first gay-friendly Court decision. As Kennedy put it in his majority opinion, “It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.” In dissent Scalia has a point when he calls gay people “a politically powerful minority” but, calling everyone’s attention to Bowers v. Hardwick, still seems unaware that women as well as men give blowjobs.

Herrera v. Wyoming, 587 U.S. 329 (decided May 20, 2019): neither the creation of the Wyoming Territory in 1868 nor Wyoming’s admission to the Union in 1890 affected Crow Tribe’s property rights and right to hunt under earlier treaty

Bloom v. Illinois, 391 U.S. 194 (decided May 20, 1968): defendant accused of criminal contempt serious enough to carry a prison sentence (here, submitting a fraudulent Will for probate) is entitled to a jury trial

Andrews v. United States, 373 U.S. 334 (decided May 20, 1963): a criminal defendant must be allowed to make a statement before being sentenced

Alabama v. Shelton, 535 U.S. 654 (decided May 20, 2002): Apparently there is no claim for violation of the right to counsel if only a suspended sentence resulted. Here, the Court holds that such a sentence cannot include the possibility of future “activation” (i.e., imprisonment).

Bruton v. United States, 391 U.S. 123 (decided May 20, 1968): admitting into evidence confession of co-defendant violates Confrontation Clause if in the jury’s mind it can implicate the defendant whether or not it is adduced for that purpose

Lucas v. Alexander, 279 U.S. 573 (decided May 20, 1929): no tax on amounts received before applicable taxing law (Revenue Act of 1918) went into effect

City of Arlington, Texas v. FCC, 569 U.S. 290 (decided May 20, 2013): FCC was entitled to Chevron deference as to its regulation setting 90-day deadline for state/local governments to act on siting applications for wireless services (statute, 47 U.S.C. §332(c)(7)(B)(ii), requires decision only “within a reasonable time”)

Sontag Chain Stores Co. v. National Nut Co., 310 U.S. 281 (decided May 20, 1940): manufacture and sale of patented machine (we’re only told it was a “nut treating apparatus”) for enlarged purpose is not patent infringement even after enlarged purpose falls within reissued patent

Doctor’s Associates v. Casarotto, 517 U.S. 681 (decided May 20, 1996): Federal Arbitration Act preempts Montana statute requiring any contract with an arbitration clause to put it in capital letters on the first page (dispute between Subway sandwich chain and franchisee)

Schlitz Brewing Co. v. United States, 181 U.S. 584 (decided May 20, 1901): bottled beer is not different enough from barrel beer to entitle bottler to “drawback” (refund of duty paid on imported materials when materials are changed and then exported) (I disagree, but with a cheap beer like Schlitz it hardly matters)

[SRG2]

Hysteria from Scalia in dissent in Romer:
The Court has mistaken a Kulturkampf for a fit of spite.
The constitutional amendment before us here is not the manifestation of a "'bare ... desire to harm' " homosexuals, ante, at 634, but is 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.

Unsurprisingly he was joined by Thomas and Lord Goddard Rehnquist,

Some interesting research:
Is homophobia associated with homosexual arousal?

Homophobia is apparently associated with homosexual arousal that the homophobic individual is either unaware of or denies.

[JoeFromtheBronx]

Romer v. Evans was a significant development in the LGBTQ rights. The case 6-3 struck down a state constitutional provision precluding [to quote Oyez.com] any judicial, legislative, or executive action designed to protect persons from discrimination based on their "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships." So, LGBT rights.

The opinion notably avoided Bowers v. Hardwick as if it was a distasteful opinion better not mentioned. Kennedy, as an appellate judge, voiced support for applying precedents involving privacy and other constitutional rights to gays and lesbians.

The reach of a state constitutional amendment that broadly singled out a group of people went beyond a law that prohibited them from performing a certain type of sex. So, Romer can be good law even without overruling Bowers.

Nonetheless, the general principles of the opinion had broader reach, and it was only a few years until Bowers was overruled. The reach of "T" related rights is still controversial.

[SMP0328]

Once Romer v. Evans was handed down, Bowers v. Hardwick was doomed. I always viewed Lawrence v. Texas as clean-up work for the Court.

[JoeFromtheBronx]

Not mentioning Bowers at all was rather telling, and Kennedy was clearly not a fan of the opinion.

Nonetheless, the actual dispute involved a broad provision that went far beyond outlawing a certain type of sexual behavior. Mere "orientation" was covered as well as "relationships" of the most chaste kind.

A homosexual who had no occasion to have sex would still be burdened by the provision, which could not be overruled by simple legislative means. The overbreadth was underlined in the opinion.

O'Connor herself in Lawrence refused to simply overrule Bowers.

[SMP0328]

You're technically right, but I always read the reasoning in Romer to silent repudiate that of Bowers. Kennedy did the same thing in Lawrence with his reasoning in that case clearly leading to Obergefell v. Hodges. Justice Scalia called this out in his dissent in Lawrence. Kennedy denied this in Lawrence, but agreed this was the case in Obergefell.

[John F. Carr]

I think Romer v. Evans was wrongly decided. So was a predecessor decision where allegedly racist voters restricted the authority of their municipal officials to do something that the judges of the time thought was wholesome and good. The superior government can impose arbitrary and irrational limitations on its subordinates. There is no right to an antidiscrimination law, whether the activity is constitutionally protected or not.

A more current example. What can schools do about children who want to act like the opposite sex? Maybe there's a constitutional right of parents to know. Maybe there's a constitutional right of children to keep secrets. In the absence of a right the state can arbitrarily say school districts can, can't, must, or mustn't take a stand on this issue. It can require each school district to flip a coin. You shouldn't be able to sue about the restrictions on the school district except to the extent that the district is required to violate your rights.

Several years ago there was a lawsuit over a referendum in Washington or Oregon. A new law was put to the voters after enough signatures were gathered. The law failed at the ballot box. Supporters of the law sued saying the voters were racist or misinformed or some such epithet. The courts ruled that the remedy for bad voters was not to reinstate the law. The court could not order a law passed that had failed the state's constitutional process. Once the signatures were submitted the law was no longer in effect.

[Speaking for normal people]

This was a very poorly decided case. And predictably it leads to the perversion of gay marriage and the opinion that gay acts are perverted is now proscribed , a complete turn-around from the Founding Fathers.

Obergefell was read to suggest that being a public official with traditional Christian values was legally tantamount to invidious discrimination toward homosexuals….Since Obergefell, parties have continually attempted to label people of good will as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy."

Writing for himself and Alito, Thomas said that the court's decision "enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss."

I don't hate gays but it is a filthy disordered perversion. NOt a speck of difference from say being an arsonist because you 'like' setting fires.so

[SRG2]

I don't hate gays but it is a filthy disordered perversion

https://theonion.com/why-do-all-these-homosexuals-keep-sucking-my-cock-1819583529/