Twisting and Turning on Gay Rights

The Supreme Court’s big gay rights decision on May 20 is at once immensely inspiring and intensely troubling.

The inspiring thing about Romer v. Evans is the Court’s overdue embrace of simple justice for gay people, through fee majority’s assertion that states "cannot make them unequal to everyone else" or "deem a class of persons a stranger to its laws."

If the courts build on this foundation with wisdom and restraint, and if the nation receives it with respect, Romer may foster social tolerance as well as legal equality. It does not necessarily portend a line of decisions that will run roughshod over the free-association fights of people who are offended by (or simply uncomfortable with) homosexuality, nor will it push Heather Has Two Mommies into public school curricula.

The troubling thing about the 6-3 Romer decision is that the majestic generalities of Justice Anthony Kennedy’s majority opinion are surrounded by such crude, superficial, and evasive legal reasoning- along with slurs tarring the voters of Colorado as bigots-as to lend credence to the dissenters’ complaint that this is "an act, not of judicial judgment, but of political will."

The risk is that the glaring flaws in me majority opinion-compounded by the distortions that pervade Justice Antonin Scalia’s elegantly vitriolic dissent- might help spur a backlash akin to the one that followed Roe v. Wade, an equally weak attempt at judicial reasoning. This could damage the Court’s moral authority and even, in the long run, set back the cause of gay rights.

We won’t know for a decade or so, until the effects have rippled through our law and culture, whether the good in this decision will eclipse the bad.

The Court seems at least arguably collect in its specific holding that Colorado violated the equal protection clause in adopting Amendment 2, a ballot referendum that would have prohibited the state and its agencies and localities from adopting gay rights laws, and wiped out all existing ones. These include local ordinances in Denver, Aspen, and Boulder that bar discrimination against homosexuals in private employment, housing, and public accommodations, and an executive order that bans employment discrimination by the state itself. Adopted by a 53-47 percent vote in 1992, Amendment 2 would have become part of the state constitution, had it been allowed to take effect.

Justice Kennedy, borrowing from an amicus brief filed an all-star cast of constitutional scholars- Laurence Tribe, John Hart Ely, Gerald Gunther, the late Philip Kurland, and Kathleen Sullivan-makes a decent start at explaining why Amendment 2 is unconstitutional:

It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protections across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence….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.

But Kennedy fails badly in his cursory stab at the challenging task of forcing the ruling into the framework of the Court’s constitutional jurisprudence.

He ignores, as though it did not exist, the Court’s lamentable 1986 decision, Bowers v. Hardwick, permitting states to make it a crime to engage in homosexual conduct. That seems a lot tougher than the types of discrimination sanctioned by Amendment 2. And while Hardwick technically involved only a due process claim, nothing in it suggested that equal protection analysis would have led to a different result.

The Romer opinion is also unpersuasive in claiming-with little more than a passing reference to its "sheer breadth"-that Amendment 2 fails traditional "rational basis" scrutiny. Kennedy peremptorily brushes aside the state’s claims that it was justified both by the need to protect the free-association rights of landlords and employers who have moral or religious objections to homosexuality, and by the goal of focusing scarce resources on fighting discrimination against other groups, deemed by the voters to be more deserving of protection.

Rather than carefully explaining why these reasonable objectives fell short of supporting the harsh and sweeping impact of Amendment 2 in uniquely blocking gays from seeking equal protection through the ordinary law-making process, Kennedy offers the conclusory assertion that "the amendment seems inexplicable by anything but animus" toward gays, and by "a bare… desire to harm a politically unpopular group." In so saying, Kennedy descends (as the dissenters complain) into "insulting" Colorado’s votes.

Those who voted for Amendment 2 were not all homophobic bigots. Some no doubt shared the free-association concerns advanced by the state; some worried that proliferation of gay rights laws might equate personal or religious objections to homosexuality with racial bigotry; some feared that such laws might foster cultural trends promoting homosexuality to their children; some wanted to avoid adding homosexuals to the list of groups lining up for affirmative action preferences; some were misled by the bumper-sticker distortion that Amendment 2 would only foreclose "special rights" for gays.

If the majority opinion is bad, the Scalia dissent, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, is ultimately worse.

And while Kennedy does not respond to Scalia’s cascade of insults-"terminal silliness", "preposterous", and so on-he must have been tempted to call the dissent "deceptive", or perhaps "disingenuous".

The Dissent descends deep into distortion in asserting that Amendment 2 "prohibits special treatment of homosexuals, and nothing more" and "merely denies them preferential treatment (emphasis added). This implies that all it would have done is stop gays from getting the sort of affirmative action that is sometimes used to prefer minorities and women over equally or better qualified whites and men.

Nonsense. Amendment 2 would expressly have barred any and all laws and policies "whereby homosexual, lesbian or bisexual orientation, conduct, practices, or relationships shall… entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination" (emphasis added).

Scalia rests his mischaracterization of Amendment 2 on two weak props. The first is an implicit suggestion that all anti-discrimination laws give "special rights" and "preferential treatment" to the protected minorities, in the sense that a black person who is fired for being black has a civil rights remedy unavailable to an ugly person fired for being ugly, or a short person for being short, or a drug addict for using drugs.

But this is tantamount to describing laws against racial discrimination as creating "special rights" for black people. And Scalia’s use of such language is especially misleading in a world in which the employment-at-will doctrine is dead-buried (in Colorado) under a web of laws that bar discrimination on the basis of age, military status, marital status, pregnancy, parenthood, custody of a child, political affiliation, and physical or mental disability, not to mention race, creed, color, national origin, and sex. Such protections against discrimination are (in Kennedy’s words) "taken for granted by most people either because they already have them or do not need them."

Scalia’s second bogus rationale is his claim-based on an ambiguous footnote in the Colorado Supreme Court’s 1994 opinion-that, even if Amendment 2 were upheld, " ‘general laws and policies that prohibit arbitrary discrimination’ would continue to prohibit discrimination on the basis of homosexual conduct as well."

But Scalia stops conspicuously short of saying that Amendment 2 would, for example, have left a lesbian who was fired on account of sexual orientation the option of suing her employer for "arbitrary discrimination." And to the extent that Scalia implies that gays might still have had some such protection, his analysis is hard to reconcile with the language and logic of Amendment 2.

Scalia could very plausibly argue that the Court should not strike down Amendment 2 without first, at least, asking the state supreme court to clarify the amendment’s effects on other state laws. Instead, he resorts to bumper-sticker jurisprudence-not to mention the usual overheated fulminations.

Perhaps the best hope for Romer is that-as with the far more compelling case of Brown v. Board of Education-its flaws in terms of judicial reasoning will be overshadowed in the long run by its value as a symbolic affirmation of simple justice for a group long victimized by discrimination and prejudice.

This may be one of those rare times when the Court should assume the role of moral conscience to the nation. But when it thus puts its credibility and legitimacy on the line, it should try harder to ground its rulings in constitutional language, theory, and precedent, and to persuade, rather than insult, the electorate.