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| − | This page has been withdrawn from Conservapedia as part of a mass removal of content added by [[user:AmesG|Ames]] pursuant to a copyright challenge brought by the same user. The challenge rests on two grounds:
| + | {{caselaw|Romer v. Evans|517 U.S. 620|2002}} |
| − | #Some content was added prior to the institution of Conservapedia's [http://www.conservapedia.com/index.php?title=Conservapedia:General_disclaimer&oldid=82832 copyright policy] on 2 April 2007, and is now removed by the user's unencumbered and uncontroverted ability to control his own content in the absence of contract or waiver to the contrary.
| + | {{discrimlaw}} |
| − | #Some content, added after Conservapedia's copyright policy came into effect, is withdrawn under the below reasoning:
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| − | *If Ames supplied content gratuitously, he now revokes it.
| + | == Subject of Litigation == |
| − | *Any waiver executed by the user would have been a contract; however, the professed disclaimer asserts that it is not a contract. Ergo, no waiver was made.
| + | The [[homosexual]] movement became powerful in certain areas of Colorado, particularly among the elite in [[Denver]] and [[Aspen]]. These cities passed laws granting special privileges to homosexuals not enjoyed by heterosexuals, such as banning discrimination against homosexuals but not against heterosexuals. {{fact}} |
| − | *If the waiver was a contract, it fails for lack of consideration. No exchange was contemplated or made between the parties; detriment was suffered by user in the loss of copyrighted privileges, time, and effort put into text, but no compensation was received in turn. If use of the site constitutes compensation, such use was already provided free of charge prior to copyright waiver, and even prior to contribution, and past consideration is no consideration.
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| − | *If the waiver was a contract, it was procedurally unconscionable and voidable. User has no power under the agreement, and a simple contract of adhesion such as this one professes to be is voidable as a matter of public policy. As voidable, it is now void.
| + | Colorado voters statewide opposed this favoritism, and enacted a referendum known as "Amendment 2" to the Colorado Constitution. This nullified any city or state law granting special protections to homosexuals. |
| − | *If the waiver was a contract, and use of the site was acceptance, the contract was breached by Conservapedia. Conservapedia, by virtue of holding out certain guidelines and "commandments," incorporates these commandments into the the contract. These "commandments" were breached with regard to users, as user's access to the site was terminated without cause (under the commandments) in May 2007. Prior to May 2007, user had not violated the commandments. Having been breached, waiver is inoperative.
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| − | *If the waiver was a contract, Conservapedia was unjustly enriched by avowadly valuable material.
| + | The Amendment was based on the traditional legal doctrine that employers can fire at will, and that Colorado would devote scarce resources to eradicating race and gender discrimination. |
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| | + | [[Liberals]] quickly sued to persuade a judge to overturn what the people had just approved. The [[liberal]] argument was that the amendment violated the Equal Protection Clause. Though the [[U.S. Supreme Court]] declines to hear about 99% of the cases presented to it, it granted ''certiorari'' to hear this dispute. |
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| | + | == Holding of the Court == |
| | + | A narrow majority of the [[U.S. Supreme Court]] invalidated what the majority of Colorado voters approved. Justice Sandra Day O'Connor wrote that the only reason for Amendment 2 was "animus laid bare," or a mere desire to stigmatize without any real benefit for its citizens, and a real detriment to the stigmatized group. O'Connor wrote that this very idea was repugnant to the [[U.S. Constitution]]. |
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| | + | == Fallout, and Interpreting ''Romer'' == |
| | + | The Court says that Amendment 2 fails [[rational basis review]]. But does it really? Rational basis review allows almost any "state interest," legitimate or not, pretextual or not, to count as sufficient for legislative classification. Thus, even an almost farcical motive for classification will generally pass muster (''Carolene Products'' says as much). Under this light test, it is argued, Amendment 2 would pass, since even if the reasons were pretextual, rational basis would still not invalidate them. |
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| | + | As a result of this problem, commentators have suggested that ''Romer'' represents something more revolutionary than it appears, at first. Perhaps ''Romer'' stands for the principle that, when classifying on the basis of so-called sexual orientation, rational basis is not enough. Rather, in addition to a rational basis, the reviewing Court must also ensure that the offered rationale is not pretextual to "animus laid bare." This is a much more robust inquiry, dubbed "rational basis with teeth," that sounds like a midpoint between [[rational basis review]] and [[intermediate scrutiny]]. If it is, it may be a suggestion that the Court would be willing, in the future, to require classification on the basis of sexual preference or orientation to pass [[strict scrutiny]]. The Court has before offered "midway" cases, after all, in the run-up to making a sweeping doctrinal change, as the case ''Reed v. Reed'' presaged the application of strict scrutiny to gender with a similarly vague form of "rational basis" review. |
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| | + | Many have suggested that ''Romer'' makes little sense in a pre-''Lawrence'' world. After all, so long as sodomy or other homosexual sex acts were illegal, could not the state find a "rational basis" to discriminate against homosexuals on the basis of their imputed engagement in felonious acts (sodomy)? Indeed, this reason should pass the light review guaranteed by [[rational basis review]]. As such, after ''Lawrence'', when anti-sodomy statues were struck down, ''Romer'' makes much more sense, since the criminal stigma of homosexuality was wholly removed by ''Lawrence'', at least at law. |
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| | + | The possibility of ''Romer'''s revolutionary nature has been confined somewhat by lower court holdings. In Florida, the court in ''Lofton'', upheld a ban on gay adoption without engaging in the "pretext" analysis that a broader reading of ''Romer'' would require, and instead ending the inquiry with [[rational basis review]]. However, this case was very narrowly decided, and only denied rehearing by a vote of 6 to 6. The real meaning of ''Romer'' is thus unsettled, and unlikely to be settled in the near future, as the Court often adopts a "wait and see" approach after major social changes, before instigating another. |
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| | + | == Dissent == |
| | + | Scalia wrote a dissent to the case, observing how the case really concerned the "[[homosexual agenda]]." Why is the [[U.S. Supreme Court]] picking sides in a political dispute? He reminded the Court of its narrow role in resolving social conflicts, and took a textual view of the [[Fourteenth Amendment]] as protecting only against discrimination on the basis of race and gender. Since sexual "orientation" was neither, he said, the legal inquiry was over, and the [[U.S. Constitution]] was silent. |
| | + | [[category:law]] |