Actually that is the gist of the Loving decision in 1967. That states can regulate Civil Marriage until such time as they violate rights.
Which case was that?
United States vs. Carolene Products Co., and
Korematsu v. United States
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to
weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or intermediate scrutiny. These standards are used to test statutes and government action at all levels of government within the United States.
The notion of "levels of judicial scrutiny", including
strict scrutiny, was introduced in Footnote 4 of the U.S. Supreme Court decision in
United States v. Carolene Products Co. (1938), one of a series of decisions testing the constitutionality of New Deal legislation. The first and most notable case in which the Supreme Court applied the
strict scrutiny standard and found the government's actions valid was
Korematsu v. United States (1944), in which the Court upheld the exclusion of Japanese Americans from designated areas during World War II.
U.S. courts apply the
strict scrutiny standard in two contexts, when a fundamental constitutional right is infringed,[1] particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment.
To pass
strict scrutiny, the law or policy must be justified by a
compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred.
The United States vs. Carolene Products Co., and Korematsu v. United States were just the earliest of the cases of
strict scrutiny requiring
compelling interest. Over the years, there have been hundreds of cases involving this principle such as the Supreme Court under Earl Warren adopted an expansive view of the Free Exercise Clause. The Court required that states have a
"compelling interest" in refusing to accommodate religiously motivated conduct as it decided
Sherbert v. Verner (1963).
The
"compelling interest" doctrine became much narrower in 1990, when the Supreme Court held in Employment Division v. Smith that, as long as a law does not target a particular religious practice, it does not violate the Free Exercise Clause.
in 1993, Congress passed the Religious Freedom Restoration Act (RFRA), which sought to restore the
"compelling interest" standard. In
City of Boerne v. Flores (1997) the Court struck down the provisions of the Act that forced state and local governments to provide protections exceeding those required by the First Amendment, which the courts enjoy sole power to interpret. According to the court's ruling in
Gonzales v. UDV (2006), RFRA remains applicable to federal statutes, which must therefore still meet the
"compelling interest" standard in free exercise cases.
Here's a few more examples (quoted right off the Supreme Court bench) >>>
“It [the university] must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” (
Widmar v. Vincent, 454 US 263, 270, 1981)
“For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” (
Perry Ed. Assn. v. Perry Local Ed. Assn., 460 US 37, 45, 1983)
“The Court of Appeals found the injunction to be content based and neither necessary to serve a compelling interest nor narrowly drawn to achieve that end.” (
Madsen v. Women’s Health Center, 512 US __, __, 1994)
“Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law.” (
City of Boerne v. Flores, 1997 US Lexis 4035, 46)
OK, I may have misunderstood. Of course the government can discriminate if their is a compelling government interest. But of course there is no compelling government interest in discriminating against gays as a function of government. Hell, not only does it not have a compelling government interest, it doesn't even rise to the rational basis test standard.
Take for example Colorado's Amendment 2 which attempted to strip equality from homosexuals and leave them with no legal recourse to challenge discrimination, not only at the State level is voided even local laws that attempted to provide legal recourse. In Romer v. Evans the court stated:
"The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271- 272 (1979); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g., Heller v. Doe, 509 U.S. ___, ___ (1993) (slip op., at 6).
Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests."
Just to reiterate, the court said the the desire to discriminate against homosexuals lacked a rational basis.
Who cares what the state court said ? This is a lower court ruling (stayed on appeal), which will be overturned, based on the strict scrutiny (compelling interest) principle, as have many of these which have resulted in the USA map being massively a map of discrimination against queers. Don't think so ? Click the link, it's link list, and look at the maps for your self.
https://www.hrc.org/resources/entry/maps-of-state-laws-policies
This post is like trying to put the weight of a fly up against the weight of an elephant. The fly is your feeble Amendment 2 example. The elephant is the 34 states in the USA which allow discrimination every day against queers, in marriage, adoption, public accomodations, teaching, housing laws, hospital visitation, employment, etc, etc. + the numerous anti-queer laws that exist all over the country
***, firmly resting upon the platform of strict scrutiny's compelling interest to keep homosexuals from establishing their perversion as an acceptable entity in society, which would be harmful to Americans and America, turning it into one big giant nuthouse.
*** A few examples >>>
1. In Alabama, state law dictates that homosexuality is not an acceptable lifestyle: (ALA CODE § 16-40A-2-c8)
2. According to Arizona law, not only is there nothing positive about being gay, there is no safe way to have homo sex:
C. No district shall include in its course of study instruction which:
1. Promotes a homosexual life-style.
2. Portrays homosexuality as a positive alternative life-style.
3. Suggests that some methods of sex are safe methods of homosexual sex. (AZ 15-716C)
3. Louisiana has a law censoring homosexuality in sex education, but it only applies to “any sexually explicit materials depicting male or female homosexual activity.” Given the law’s emphasis on abstinence from sexual activity outside of marriage and the state’s ban on same-sex marriage, non-pictorial discussions of homosexuality could probably be considered violations as well.(RS-17-281)
4. Mississippi law dismisses the possibility that there is any kind of queer sex that is safe, appropriate, or legal:
(1) Abstinence education shall be the state standard for any sex-related education taught in the public schools. For purposes of this section, abstinence education includes any type of instruction or program which, at an appropriate age: [...]
(e) Teaches the current state law related to sexual conduct, including forcible rape, statutory rape, paternity establishment, child support and homosexual activity; and
(f) Teaches that a mutually faithful, monogamous relationship in the context of marriage is the only appropriate setting for sexual intercourse. (37-13-171)
5. North Carolina law implies that queer sex is inherently unhealthy: e. Teaches that a mutually faithful monogamous heterosexual relationship in the context of marriage is the best lifelong means of avoiding sexually transmitted diseases, including HIV/AIDS. (115C-81)
6. Oklahoma’s law focuses specifically on preventing the transmission of the “AIDS virus” (HIV), claiming that “homosexual activity” is among the causes primarily responsible for contact with it:
D. AIDS prevention education shall specifically teach students that:
1. engaging in homosexual activity, promiscuous sexual activity, intravenous drug use or contact with contaminated blood products is now known to be primarily responsible for contact with the AIDS virus;
2. avoiding the activities specified in paragraph 1 of this subsection is the only method of preventing the spread of the virus; (§70 11 103.3)
7. In South Carolina:
(5) The program of instruction provided for in this section may not include a discussion of alternate sexual lifestyles from heterosexual relationships including, but not limited to, homosexual relationships except in the context of instruction concerning sexually transmitted diseases. (South Carolina Code 59-32-30. Local school boards to implement comprehensive health education program; guidelines and restrictions).
8. Even though it was Texas’s sodomy law that the Supreme Court struck down over 10 years ago, that law is still part of the state’s sex education policy:
(b) The materials in the education programs intended for persons younger than 18 years of age must:
(1) emphasize sexual abstinence before marriage and fidelity in marriage as the expected standard in terms of public health and the most effective ways to prevent HIV infection, sexually transmitted diseases, and unwanted pregnancies; and
(2) state that homosexual conduct is not an acceptable lifestyle and is a criminal offense under Section 21.06, Penal Code.
The law also asserts that “sexual activity before marriage is likely to have harmful psychological and physical consequences,” and given that same-sex marriage is banned in Texas, this implies that all gay sex is harmful in such fashion.
9. Utah law prohibits “the advocacy of homosexuality.” (53A-13-101-AII)
10. In Florida, lawmakers this year rejected a statewide domestic partnership registry that would have granted health care visitation, among other rights, to same-sex couples. Homo members of the National Guard recently were prohibited from signing up for federal benefits at state buildings. And a Broward County Republican Party leader almost lost her job for voicing support for homosexual marriage. Florida's state constitution continues to define marriage as between a man and a woman, and prohibits gays from adopting children.
Florida is also one of nine states that refused to register same-sex spouses of National Guard personnel for health and death benefits, and refuses to issue them identification cards to access military bases.