Preview of 1995 Court Term: Lesbian and Gay Rights

September 27, 1995 12:00 am

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Matt Coles – Director, ACLU National Lesbian and Gay Rights Project

September 27, 1995

In the last ten years, the federal courts have turned away virtually every claim for protection under the Constitution made by lesbians and gay men. If lesbians and gay men want protection from discrimination, the courts said, they should look to legislatures, governors, city councils — the political branches — not to the courts.

To a very large extent, the movement for lesbian and gay rights has taken the courts at their word. The movement has gone to the political branches for protection against discrimination. And while lesbians and gay men have not won every political battle in the past ten years, we have won a fair number. Between 1989 and 1995, eight states passed laws outlawing discrimination, as did scores and scores of cities. At the urging of their gay and lesbian employees, many businesses adopted their own nondiscrimination policies, and many cities and businesses began to recognize lesbian and gay relationships.

Colorado’s Amendment 2 is the opposition’s answer to the gay rights movement’s partial legislative success. Amendment 2 says the state of Colorado will have two different rules for passing civil rights laws–the usual one for most citizens, which lets the legislature or a city council decide who ought to be protected from discrimination, and a special rule for lesbians, gay men and bisexuals, which says they can never be protected.

Amendment 2 is designed, quite simply, to end the political debate about whether lesbians and gay men should be protected by civil rights laws for good. The opposition’s answer, since it can not defeat us every time, is to change the rules.

In Romer v. Evans, the Supreme Court will decide if Amendment 2 violates the equal protection clause of the federal Constitution, as the Colorado Supreme Court said it did. The decision could potentially affect the lesbian and gay rights movement in three significant ways.

First, the result itself will be important, of course. The effort to obtain state laws protecting lesbians and gay men from discrimination continues. If the U.S. Supreme Court upholds the Colorado Supreme Court’s decision, we will be guaranteed the right to ask for the same civil rights protection that any other group in America can ask for. If it does not, in Colorado lesbians and gay men alone will be prevented from ever getting civil rights protection unless we convince the voters to change the rules again. A decision like that would also allow other states to adopt similar changes in the rules for making laws, and in at least a few states, opponents of the lesbian-gay rights movement are sure to try to have similar rules changes adopted.

Second, the Court’s reasoning will be important. Our challenge to Amendment 2 makes two arguments. First, we say, the federal Constitution guarantees everyone the fundamental right to have an equal voice in democratic self government. Everyone should get the same chance to convince a state to adopt any particular kind of law. That means that any change in the structure of a state’s government that creates different rules about how laws can be passed for different groups of citizens ought to be examined by the courts with deep suspicion, and should be upheld only if it is absolutely necessary to achieve some compelling nondiscriminatory public purpose.

This is the argument the Colorado Supreme Court accepted. If the U.S. Supreme Court accepts it, it means an end to the recent rash of anti-gay initiatives that try to change the rules. Moreover, it would prevent this kind of device from being used against any other minority in the future (it has been used once in the past, against African-Americans in the 1960s).

Our second argument is that the discrimination built into Amendment 2 — that civil rights laws can be passed to protect anyone but lesbians and gay men — can not be explained by anything other than hostility to lesbians and gay men. Dislike of a group of citizens, we argue, is never a legitimate reason for treating them differently. This argument — that dislike is never a “rational basis” for different treatment — has been developed in the last ten years as a way of obtaining at least some minimum protection from federal courts that are unwilling to see government policies that explicitly discriminate against lesbians and gay men as any more suspicious than discrimination between different sized-buildings in zoning regulations.

There are many cases in federal courts now where the issue is the constitutionality of discriminating against lesbian and gay Americans because other Americans do not like them. Among them are the “don’t ask, don’t tell” military cases, which are likely to reach the Supreme Court in the next year; employment cases; cases from lesbian and gay student groups, and anti-gay violence cases, among others. If the Court in Romer reaches the rational basis issue, and agrees that hostility is not a legitimate basis for discrimination by government, the anti-gay policies involved in all those cases will be much more vulnerable.

Finally, the Court’s tone will be very important. While it is not true that the Court’s 1986 decision in Bowers v. Hardwick completely explains the unwillingness of the federal courts to protect lesbians and gay men from discrimination, it has been a major part of it. In Bowers, the Court took a case about a law that regulated the private sexual behavior of everyone and made it into a case about “homosexual sodomy.” The court’s opinion was laced with invective and contempt.

The tone was not lost on federal courts, which took Bowers as an answer not just to privacy questions involving lesbians and gay men, but as an answer to virtually every constitutional question involving lesbians and gay men, implicitly deciding that the court which delivered the opinion in Bowers would be hostile to any “gay” case. If the Court in Romer continues to treat lesbians and gay men with the respect it showed last term in the Hurley case, that is sure to signal the lower federal courts that at least this part of the Bowers v. Hardwick era is coming to an end, that the federal courts are not effectively closed to the constitutional claims of gay men and lesbians.

Perhaps more important, the tone of Bowers was not lost on the nation. Many Americans see the Supreme Court as something of a constitutional conscience for the country. The message of Bowers was that there is nothing immoral about raw hostility to lesbians and gay men. If the Court adopts the tone of Hurley and if it embraces that basic American notion of a level playing field in politics and upholds the Colorado Supreme Court, the public debate about lesbians and gay men is likely to change significantly, and become much more open to our plea for equal treatment.

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