Gay rights case prompts heated debate in high court.

The justices of the U.S. Supreme Court in October heard arguments from lawyers--and argued among themselves--in the first gay rights case to reach the Court since 1986. The Court will decide whether to let stand a Colorado constitutional amendment that bans civil rights protections for gays and lesbians. (Romer v. Evans, No. 94-1039 (argued Oct. 10, 1995).)

Several justices seemed troubled by the measure, known as Amendment 2, which was approved by 53 percent of Colorado voters in a 1992 referendum. Colorado Solicitor General Timothy Tymkovich had barely taken his place at the podium before Justices Ruth Bader Ginsburg, Anthony Kennedy, and Sandra Day O'Connor challenged him.

Ginsburg interpreted the amendment to mean "thou shalt not have access to the ordinary legislative process for anything that could improve the status of this group." She said that if a similar measure applying to women had been in place early in the century, women would never have won the right to vote.

"I'd like to know whether in all of U.S. history there has ever been anything like this," she said.

Kennedy shared her doubts, saying he did not know of any other statute that "fenced out" a class of people from the legislative process. "I've never seen a case like this," he said.

O'Connor asked whether the amendment meant that gays and lesbians would not be covered by Colorado's general laws. She suggested that under the amendment, public libraries might be able to refuse to allow homosexuals to borrow books, "and there would be no relief for that." Ginsburg asked whether hospitals could refuse to treat gays and lesbians, and Justice Stephen Breyer wondered whether a city police department could legally implement a campaign to stop "gay bashing."

Tymkovich conceded that the reach of Amendment 2 is not clear because Colorado courts have not yet ruled on the question. But he defended the measure's constitutionality, saying that it merely bars laws that would give gays and lesbians "special rights" that other citizens do not enjoy.

Justice Antonin Scalia, who defended the amendment and several times answered his colleagues, questions for Tymkovich, pressed the "special rights" argument. He said people may be discriminated against for a variety of reasons, such as their ethnic background or hair style. But no antidiscrimination laws specifically protect these other identifiable groups.

"Why is discrimination against one group treated differently than discrimination against another group?" Scalia asked.

Jean Dubofsky, a former Colorado Supreme Court justice who argued for the plaintiffs, rejected the claim that civil rights protections for gays and lesbians confer special rights on them. Dubofsky represents several gay Colorado citizens and the cities of Aspen, Boulder, and Denver, whose antidiscrimination ordinances would be invalidated if Amendment 2 stands.

"I don,t think there is such a thing as special rights and special protections," Dubofsky told the Court. "There is a right of every person to be free from arbitrary discrimination."

She emphasized the reasoning of the Colorado Supreme Court, which last year struck down the amendment as unconstitutional. That court said the measure violates equal protection guarantees because it "bars gay men, lesbians, and bisexuals from having an effective voice in government affairs." (Evans v. Romer, 882 P.2d 1335 (Colo. 1994).)

Dubofsky told the Court that the amendment is unconstitutional because it "is very specific. It targets only one group of people."

An injunction has prevented Amendment 2 from taking effect until its constitutionality is determined. The Court is expected to rule next spring.