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A new era for gay rights?

Evans v. Romer is the first unequivocal victory for gay rights in the Supreme Court.(1) The Evans decision invalidated a provision of Colorado's constitution, adopted by voter referendum, that forbade the state and its various subdivisions to adopt policies protecting homosexuals against discrimination.(2)

The provision, known as Amendment 2, had the immediate effect of nullifying ordinances in Denver, Boulder, and Aspen that prohibited employers and landlords from discriminating on the basis of sexual orientation.

The Colorado Supreme Court had struck clown Amendment 2 for abridging the fundamental right of homosexuals to participate in the political process. The parties had focused much of their attention on this fundamental-rights theory.(3)

The ruling from the U.S. Supreme Court is striking in several respects. Justice Anthony Kennedy's majority opinion decided the case under the Equal Protection Glause's rational-basis test. In invoking this test, the Court characterized Amendment 2 as affirmatively injuring homosexuals rather than as revoking special preferences. The majority did not even cite Bowers v. Hardwick, the 1986 decision that upheld Georgia's criminal sodomy statute.(4)

The Evans majority consisted of six justices, including Reagan appointees Kennedy and Sandra Day O'Connor. Kennedy--who also wrote the flag-burning decision(5) and who has voted to maintain the rule of Roe v. Wade(6)--bids fair to become to President Reagan what Justice William Brennan was to President Eiserhower.

Equal Rights or Special Rights?

One of the recurring issues in constitutional law concerns whether to characterize government policies as action or inaction. In general, our constitutional law presupposes state common law rules of property and contract as defining the baseline for making this determination. Any policy that impairs private control over property or freedom of contract requires justification. No justification is required for policies that leave individuals free to exercise property and contract rights as they please.

Left-leaning theorists have attacked this assumption. Behind every exercise of private rights over property or under contract stands the government's commitment to enforce those private rights.(7) Thus, no conceptual difference exists between the entitlement to welfare benefits and the entitlement to Blackacre in fee simple absolute, because both entitlements ultimately depend on the coercive power of the state.

From the traditional state-action perspective, Colorado's Amendment 2 didn't do anything. It merely left private parties free to refuse to do business with gays and lesbians. Because private discrimination involves no state action, the plaintiffs had no constitutional complaint.

From the progressive perspective, Amendment 2 looks very different. As a group of constitutional law mavens argued in an amicus brief in Evans, the amendment prohibited a class of people from obtaining state protection against wrongful conduct.(8) Just as the state could not exclude left-handed people from protection against robbery, it could not exclude gays and lesbians from protection against discrimination.

The High Court majority swallowed this argument hook, line, and sinker. The protections against discrimination in employment, housing, and the distribution of government benefits "are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society."(9) The local antidiscrimination laws typify "an emerging tradition of statutory protection" against invidious discrimination.(10)

Evans illustrates the centrality and the difficulty of the baseline question. On the assumption of a common law baseline, Amendment 2 worked no constitutionally significant change. But the majority took the view that invidious discrimination in private business dealings is customarily forbidden in U.S. law. Therefore, excluding homosexuals from seeking protection against this discrimination changed the law in a way that could be challenged under the Equal Protection Clause.

The Supreme Court's treatment of the baseline question is not completely convincing. Antidiscrimination laws, unlike laws against violence, necessarily single out classes for protection. Consequently, the repeal of antidiscrimination laws must single out groups for the loss of protection. It is difficult to believe that a state legislature considering a statutory ban on employment discrimination based on sexual orientation must assume that this ban could not be repealed. Yet that is just what the majority opinion seems to suggest.

The fact that Colorado repealed these laws on a wholesale, rather than a retail, level is immaterial. Indeed, the Colorado Supreme Court had struck down the amendment because it denied homosexuals the fundamental right to seek political redress from local governments. The majority refused to take this approach, suggesting concern more with the motive behind Amendment 2 than with the provision's scope.

Rationality and Morality

Having characterized Amendment 2 as imposing "a special disability" on gays and lesbians, the Evans majority next considered whether the state could justify this disability under the Equal Protection Clause. Presumably apprehensive of setting another Bowers-like precedent, the plaintiffs had waived any claim that homosexuals constitute either a suspect or quasi-suspect class. Thus, the Court considered Amendment 2 solely under the rational-big test.

The majority quite convincingly inferred that "the disadvantage imposed is born of an aumosity toward the class of persons affected."(11) Irrational animosity would of course fail the rational-basis test, but that begs the question: Is animosity toward nab as a class irrational?

In Bowers, the Supreme Court rejected a privacy-based challenge to Georgia's criminal prohibition of sodomy, stating that promoting traditional moral values provides a "rational basis" for the law.(12)

If the Colorado voters decided to immunize discrimination against homosexuals because they believe that homosexuality is morally wrong and that discrimination discourages homosexuality, how does Amendment 2 differ from a sodomy law? Quite clearly, the Court rejected the claim that promoting traditional morality provides a rational basis for discrimination against gay people. Just as clearly, the Court consciously refused to explain this conclusion or to reconcile it with Bowers.

The Court's silence is probably due to the need to hold together a disparate coalition of justices. In Planned Parenthood v. Casey, Justices O'Connor, Kennedy, and David Souter opined that Roe v. Wade should not be overruled even on the assumption that the Roe Court had made a mistake. The justices said that "to overrule under fire in the absence of a compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question."(13)

Justice O'Connor had joined the majority in Bowers, while Justice John Paul Stevens had dissented. Therefore, it seems. likely that the members of the Evans majority could not agree on how to characterize Bowers.

In truth, Bowers was decided by justices with an eye to overrule Roe. Only Justice Lewis Powell ever believed that Bowers and Roe can be reconciled, and even he ultimately admitted that Bowers was wrongly decided.(14) Thus, the embarrassment to the Casey plurility of overruling Bowers is more a matter of appearance than reality, for fidelity to Roe compels conflict with Bowers.

From a strictly logical point of view, sodomy laws are justified only by the same moral considerations that the Evans majority ruled irrational. Even more dramatically than Amendment 2, a sodomy statute "classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else."(15) The majority's silence, however, makes the status of Bowers a matter of speculation.

It is just as difficult to predict how Evans will affect litigation over the military exclusion policy or gay marriage. The policy considerations in each context are unique, and nothing could be more fact-specific than a rational-basis holding. Nonetheless, Evans does hold that moral disapproval of homosexuality is not of itself a rational basis for imposing legal disabilities on homosexuals.

In the military context, the government relies on the interest in military effectiveness and on judicial deference to the political branches. In the gay marriage context, however, the state is likely to rely on the very same moral considerations that the Evans Court found unconvincing. Likewise, a public employee who loses a job or a promotion solely on account of sexual orientation would have a strong constitutional claim under the Evans decision.

That a new judicial attitude toward sexual orientation has arrived seems far more certain than the precise doctrinal changes that will result. The inability of the Evans majority to even articulate the inculcation of traditional morality as a purported basis for the law suggests a profound departure from the assumptions underlying Bowers.

In Bowers, Justice Byron White characterized the claimed constitutional right to sexual intimacy in private as "at best facetious,"(16) and Chief Justice Warren Burger invoked "millennia of moral teaching" to support the Georgia law.(17) Similar sentiments can be found in Evans, but they inhabit the dissenting opinion of Justice Antonin Scalia, who was joined by Justice Clarence Thomas and Chief Justice William Rehnquist.

Scalia's basic points--that the majority mischaracterized the applicable baseline, that promoting morally provides a rational basis for Amendment 2, and that the Bowers decision is a weighty precedent favorable to the state--are plausible on their face. They are betrayed, however, by the bitter tone of his opinion, which analogizes homosexuality to murder, polygamy, and cruelty to animals(18) and then refers to the "disproportionate political power of homosexuals."

Scalia writes, "It is nothing short of preposterous to call `politically unpopular' a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4 percent of the population had the support of 46 percent of the voters on Amendment 2."(19)

Justice Scalia's view of gay political influence is myopic. There are only three openly gay U.S. Representatives, two of whom are retiring.(20) By way of comparison, there are 37 members of the Congressional Black Caucus.

Only months after President Clinton was inaugurated, hundreds of thousands of gays and lesbians marched in Washington to support his campaign pledge to end discrimination against homosexuals in the armed forces.(21) Yet, today, the military ban is reinforced by congressional statute.

One state's judiciary is considering legalizing gay marriage so, in 34 to legislatures, bills are pending to declare gay marriage against public policy.(22) President Clinton, a shrewder judge of "politically unpopular groups" than any justice, has vowed to sign a federal bill to the same effect.

Scalia thought his dissent important enough to read from the bench. The fact that even justices of the Supreme Court regard homosexuality as properly criminal, gays as a privileged class, and official discrimination as rational makes a strong case for testing sexual orientation classifications under the strict scrutiny standard. That claim was waived in Evans itself, at least partly because of the obstacle posed by Bowers. Evans is both hard to defend on rational-basis grounds and inconsistent with Bowers. If, however, the Evans decision represents a way station on the road to strict scrutiny, its doctrinal difficulties are both excusable and temporary.


(1) 116 S. Ct. 1620 (1996). (2) Amendment 2 provided that "neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political sub divisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination." (See Evans, 116 S. Ct. 1620, 1623.) (3) See Evans v. Romer, 854 P.2d 1270 (Colo. 1993) (Amendment 2 subject to strict scrutiny under fundamental-rights theory); Evans v. Romer, 882 P.2d 1335 (Colo. 1994) (state failed to advance any compelling interest in support of Amendment 2). (4) 478 U.S. 186 (1986). (5) Texas v. Johnson , 491 U.S. 397 (1989). (6) See Planned Parenthood v. Casey, 505 U.s. 833 (1992) (plurality opinion). (7) See, e.g., CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 68-92 (1993). (8) Brief of Laurence H. Tribe, John Hart Ely, Gerald Gunther, Philip B. Kurland, and KAthleen M. Sullivan as Amici Curiae in Support of Respondents, Evans (No. 94-1039(. (9) Evans, 116 S. ct. 1620, 1627. (10) Id. at 1627. (11) Id. at 1629. (12) See Bowers, 478 U.S. 186 196. (13) 505 U.S. 833, 867 (plurality opinion). (14) See Linda Greenhouse, When Second Thoughts Come Two Late, N.Y. TIMES, Nov. 5, 1990, at 144. (15) Evans, 116 S. Ct. 1620,1629. (16) 478 U.S. 186, 194. (17) Id. at 197 (Burger, C.J., concurring). (18) Evans, 116 S. Ct. 1620, 1633 (Scalia, J., dissenting): Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers. (19) Id. at 1631. (20) Promising New Gay Candidate for Congress, MINN. STAR-TRIB., Jan. 10,1996, at 13A. In addition to Representative Barney Frank, who is seeking reelection, the article notes that four openly gay candidates were then seeking major party nominations for congressional seats. (21) See, e.g., The Clash Over Crowd Estimates, WASH. POST, Apr. 26, 1993, at A1. (22) See, e.g., Backers, Foes Clash Over Gay Marriage Ban, CLEV. PLAIN DEALER, May 16,1996, at 15A.

Donald A. Dripps is a professor at the University of Illinois College of Law.
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Author:Dripps, Donald A.
Date:Sep 1, 1996
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