Gay rights at the crossroads.

The Supreme Court's current term does not include any potential front-page cases. The justices' decision to grant certiorari in the Colorado referendum case means that at least one such potential landmark will be argued in the October 1995 term. (Evans v. Romer, 882 P.2d 1335 (Colo. 1994), cert. granted, 115 S. Ct. 1092 (1995).) Evans could turn out to be either a narrow ruling about the federal constitutional limits on direct democracy in the states, or a watershed case about gay rights.

On November 3, 1992, Colorado voters approved Amendment 2, which provides that no unit of state government

shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual or relationships, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim my minority status quota preferences, protected status or claim of discrimination.

Id. at 1338.) This amendment superseded gay rights ordinances adopted by the cities of Boulder and Aspen. These cities joined individual plaintiffs in a suit challenging the amendment on federal constitutional grounds.

The Colorado Supreme Court held that Amendment 2 violated the Equal Protection Clause of the Fourteenth Amendment. But the court did not hold that homosexuals constitute a suspect class. Rather, relying on Hunter v. Erickson (393 U.S. 385 (1969)) and Washington P. Seattle School District No. 1 (458 U.S. 457 (1982)), the Colorado court held that Amendment 2 abridged the "fundamental right" to seek protection through the political process.

Because state policies abridging fundamental rights are subject to strict scrutiny, the Evans court called on the state to identify a compelling state interest supporting the amendment. The state failed to do this, in the opinion of the Colorado Supreme Court, and so the amendment was invalidated.

In Hunter, the Supreme Court struck down an amendment to Akron's city charter that repealed an ordinance prohibiting housing discrimination and held that voter approval was required before any such prohibition could be reenacted. In the Washington case, opponents of busing in Seattle schools proposed a statewide referendum prohibiting local school districts from achieving integration by means of busing. The Court struck down the referendum.

In both cases, the voter initiative h the effect of preventing African Americans from obtaining favorable policies from local government. Hunter an Washington, therefore, might rest either on the idea that racial classifications are subject to strict scrutiny or on the idea that access to the political process is a fundamental right.

Dissenting in Evans, Justice William Erickson sought to characterize Hunter and Washington as race cases, pure and simple. (See 882 P.2d 1335, 1357-59 (Erickson, J., dissenting).) He relied heavily on two other Supreme Court precedents - James v. Valtierra (402 U.S. 137 (1971)) and Gordon v. Lance (403 U.S. 1 (1971)).

In James, the Supreme Court upheld a California referendum that prohibited construction of low-income housing by the state without voter approval in the community where the housing project was to be built. In Gordon, the High Court upheld a state constitutional requirement that local governments obtain approval from 60 percent of the voters before increasing taxes or borrowing money.

Chief Justice Warren Burger's majority. opinion in Gordon includes two paragraphs that capture the difficulty the Court faces in the Evans case:

Unlike the restrictions in our previous cases, the West Virginia Constitution singles out no "discrete and insular minority" for special treatment. The three-fifths requirement applies equally to all bond issues for any purpose, whether for schools, sewers, or highways. We are not, therefore, presented with a case like Hunter v. Erickson in which fair housing legislation alone was subject to an automatic referendum requirement.

The class singled out in Hunter was clear - "those who would benefit from laws barring racial, religious, or ancestral discriminations." In contrast we can discern no independently identifiable group or category that favors bonded indebtedness over other forms of financing. Consequently no sector of the population may be said to be "fenced out" from the franchise because of the way they will vote.

(Id. at 5) (citations omitted; emphasis added).) The problem is that gays might constitute an "independently identifiable group" without constituting a "discrete and insular minority" protected by strict scrutiny.

The federal courts of appeals have reasoned that discrimination against gays is not subject to heightened scrutiny because homosexuality is defined by conduct - conduct that, according to Bawers v. Hardwick, can be criminal. (478 U.S. 186, reh'g denied, 478 U.S. 1039 (1986); see Steffan P. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en banc); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), amended, reh'g denied, 1989 U.S. App. LEXIS 16131 (7th Cir. Oct. 11, 1989), and cert. denied, 494 U.S. 1004 (1990); Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987). Contra Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1991), cert. denied, 113 S. Ct. 655 (1992).)

Thus, if Hunter means only that state constitutional provisions preventing localities from protecting racial minorities are unconstitutional, Colorado's Amendment 2 would survive equal protection challenge because it does not discriminate against a suspect class.

If, on the other hand, Hunter means that no group identified by common traits that transcend support for a particular policy that local governments might adopt - no "independently identifiable group" in the language of the Gordon opinion - can be "fenced out" of the political process, then the Colorado court was quite right to strike down the amendment.

The Supreme Court accordingly has four options in the Evans case. The Court could

1. hold that Hunter applied to independently identifiable groups and strike down Amendment 2;

2. hold that Hunter is limited to discrimination against discrete and insular minorities but that gays deserve heightened or strict scrutiny notwithstanding Hardwick, md therefore Amendment 2 offends the Equal Protection Clause by discriminating against a suspect class;

3. hold that Hunter is limited to discrimination against suspect classes, but leave undecided the question of whether gays constitute a suspect class because the Colorado Supreme Court did not reach this question; or

4. hold that Hunter is limited to discrimination against discrete and insular minorities and that gays do not constitute such a suspect class, and uphold the amendment.

It seems fair to speculate that Chief Justice William Rehnquist and justice Sandra Day O'Connor, who joined the majority in Hardwick, will support the fourth option. It seems equally fair to suppose that Justices Antonin Scalia and Clarence Thomas will agree. The constitutional rights of gay and lesbian citizens would then turn on whether one of the remaining justices can be persuaded to join this camp.

A justice considering this step might well be asked first to conduct a thought experiment. Suppose that in a major U.S. city - San Francisco, say - gays and lesbians came to constitute the largest single political constituency and controlled a substantial share of the markets for housing and employment.

Suppose further that this power was frequently exercised so as to discriminate against heterosexuals by excluding them from rental housing or both private and public employment, but that enlightened members of the city council adopted an ordinance prohibiting discrimination, whether private or public, on the basis of sexual orientation. Suppose, finally, that in a state-wide referendum, the voters prohibited localities from adopting policies to protect heterosexuals from discrimination.

If such a referendum were challenged under the Equal Protection Clause, would it not be obvious that the referendum excludes an identifiable group from local politics? Would it not be equally obvious that discrimination against people on the basis of an immutable trait central to personal identity should be subject to strict scrutiny - without regard to the fact that heterosexuals wield great political influence or that the state can constitutionally criminalize heterosexual conduct?

And if that is so, would it not also be apparent that Evans is an equally easy case - one that was decided correctly by the court below?