Law

The treatment of discrimination cases based in racial classifications has been subjected to the most rigorous type of judicvial review, known as strict scrutiny, and this strict scrutiny standard is comprised of three main elements. (Richmond v. J. A. Croson Co., 1989, pp. 469-470)  First, the law must serve what is defined as a competing state interest.  This element is distinguished from other standards of review in that a compelling state interest means that the law is necessary as opposed to be substantially related or a rational basis for ensuring the satisfaction of that interest.  Second, there is a requirement that the law at issue must be drafted or tailored in a manner that is very specifically designed to accomplish the aforementioned compelling state interest.  This allows the Supreme Court, in racial discrimination cases, to examine the scope of the challenged laws that is not allowed to the same extant in other discrimination cases with different standards of review.  Finally, there is a least restrictive element of the strict scrutiny tests that requires no other available or lesser restrictive legal means for achieving the same compelling state interests.  The strict scrutiny test, as a consequence, is the highest standard for examining discrimination cases pursuant to the Equal protection Clause because of the tremendous burden it places on states desiring to legislate racial classifications.

The treatment of discrimination cases based on gender classifications has employed a judicial test ranging from what has become known as intermediate scrutiny to what has more recently been strengthened to a test, as enunciated by Justice Ginsburg in United States v Virginia, that more closely resembles a strict scrutiny type of threshold although the majority in that case did not use the strict scrutiny terminology.  Prior to this Supreme Court decision in 1996, the government had the burden of proof to establish that its law functioned in pursuit of a state interest that was important and that the law substantially sought to pursue that important state interest.  However, in the 1996 case, Justice Ginsburg wrote in response to a gender classification that Parties who seek to defend gender based government action must demonstrate an exceedingly persuasive justification for that action before restating the intermediate scrutiny test that To meet the burden of justification, a State must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives (United States v. Virginia, 1996, p. 515).  It would appear, as Justice Scalias dissent asserted, that the Supreme Court in this decision strengthened the intermediate scrutiny test in gender cases that made it more similar to strict scrutiny cases than rational basis standards.

Although the United States Supreme Court has consistently refused to treat discrimination cases predicated on sexual orientation as rising to the level of a specially protected suspect class as is the case in discrimination cases predicated on race, it has finally issued an opinion holding that sexual orientation can in certain cases be used a basis for alleging and proving a violation of the Equal protection Clause via the Fourteenth Amendment.  The constitutional standard of review, however, is quite deferential and it does not demand as much scrutiny as other classes alleging and  seeking to demonstrate constitutional violations. In Romer v. Evans, for example, the United States Supreme Court held that A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense (1996, p. 622).

In the instant case, the people of Colorado has voted in favor of a state constitutional amendment that was designed to prevent all branches of the government from passing laws banning discrimination on the basis of a persons sexual orientation.  Justice Kennedy, writing for the six-member majority, did not apply a strict scrutiny or an intermediate scrutiny test instead he articulated and applied  a rational basis test in which the state of Colorado was vested with the burden to establish that this law had a rational basis upon which to serve a proper legislative purpose.  This being the most deferential standard of review in discrimination cases, the burden of proof appeared to have been relatively easy to satisfy.  Colorados law, in order to withstand constitutional challenge, need to serve a proper legislative purpose and this legislative purpose needed to be rationally designed in fact.  Specifically, this test demanded at the very least that Colorado articulate a factual basis to support the legislative purpose of the law.  Colorado, in the Supreme Courts opinion, did not satisfy this burden of proof even with respect to the extraordinarily deferential rational basis analysis.  The Court found the states proffered factual basis irrational and too attenuated from a proper legislative purpose to withstand constitutional challenge.  More particularly, Justice Kennedy concluded that We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. (Romer v. Evans, 1996, p. 624)  What emerges from this case, with respect to discrimination cases based on sexual orientation, is a standard of review known as rational basis and linked to a legitimate legislative purpose.

Although it is the most deferential standard, this case demonstrates that constitutional challenges will be sustained when people are discriminated against without any factual basis or legitimate purpose.
Confrontation Clause and the Sixth Amendment

In the instant case, and given the facts provided, defense counsel would be well-advised to argue that the witness statement is inadmissible because there is a violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution.  In Crawford v. Washington, for example, the United States Supreme Court stated that TheSixth Amendments Confrontation Clause provides that, in all criminal prosecutions, the accused shall enjoy the right  to be confronted with the witnesses against him. We have held that this bedrock procedural guarantee applies to both federal and state prosecutions. (2004, p. 39)  The public policy represented by the Sixth Amendment is that all criminal defendants should be able to challenge witness statements and cross-examine the witness in the interests of justice and fairness.  Although there are some exceptions when a witness is unavailable for a particular reason such as death, the facts in the instant case do not establish any legally recognized reason for the witness absence from the criminal proceedings the day after the statement was made.  A witness against a criminal is broadly defined and includes witness testimony or statements made in an extrajudicial setting similar to the setting provided in the instant case.  In addition, the witness statement functioned as testimony within the Confrontation Clause standards because it was solely on the basis of these facts or evidence that the defendant was convicted in a criminal trial and sentenced to a quarter century in prison.  Finally, the United States Supreme Court has also stated That interrogators are police officers rather than magistrates does not change the picture either.

Justices of the peace conducting examinations under the Marian statutes were not magistrates as we understand that office today, but had an essentially investigative and prosecutorial function and that even if theSixth Amendmentis not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class. (Crawford v. Washington, 2004, p. 49)  In sum, defense counsel will have a strong argument that the admission of the witness statement was a violation of the Sixth Amendments Confrontation Clause.