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CHARLES LEVENDOSKY: Limiting rights of gays: Romer v. Evans

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CHARLES LEVENDOSKY: Limiting rights of gays: Romer v. Evans
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(c) 1995 Copyright The News and Observer Publishing Co.
(c) 1995 N.Y. Times News Service

(Oct 16, 1995 - 16:48 EDT) Can the state of Colorado prohibit gays and
lesbians from petitioning their local governments to protect them from
discrimination?

That's the essence of the question that has been posed to the U.S. Supreme
Court in Romer v. Evans. The first step of this case, oral arguments, were
heard by the high court Oct. 10.

This is not a case about barring special rights for homosexuals; it's about
excluding gays and lesbians from participating in the political process.

During the oral arguments a majority of the justices appeared to agree that
the issue is exclusion.

Justices Sandra Day O'Connor and Anthony Kennedy, pivotal conservative swing
votes, were skeptical of Colorado Solicitor General Timothy Tymkovich's
arguments in support of the amendment's restrictions.

The amendment reads: "Neither the state of Colorado through any of its
branches or departments, nor any of its agencies, political subdivisions,
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 other wise be the basis of or entitle any person or class of persons to
have or claim any minority status, or claim of discrimination. This section
of the Constitution shall be self-executing."

In 1992, more than 53 percent of Colorado's voters approved the initiative,
called Amendment 2, and changed their constitution.

The amendment means that gays, lesbians and bisexuals can be fired for their
sexual orientation and cannot appeal such discrimination.

It permits both private and public discrimination in housing, employment, in
obtaining insurance coverage, in public accommodations, in seeking medical
help, hospitalization, and in every other area of life.

Tymkovich couldn't answer just how far this discrimination could go when
asked for clarification by Justices O'Connor and Ruth Bader Ginsburg.

But it must have been clear that the amendment is extremely broad.

Pivotal to the appeal to the U.S. Supreme Court -- this group of citizens is
barred from going to their city or county governments to petition for local
ordinances to prohibit discrimination against them.

They are "fenced off" from any appeal of this constitutional amendment.

They can only alter this arrangement by another constitutional amendment
that repeals Amendment 2.

No other group of citizens is prohibited from petitioning their local
governments for laws in their interest.

The attorney who represents the gays and lesbians in this suit argued that
the Fourteenth Amendment prohibits states from structuring their governments
to deprive members of a targeted group from equal participation in the
political process.

A year ago, the Colorado Supreme Court agreed and ruled Amendment 2 violated
the U.S. Constitution.

Colorado's high court stated that the Equal Protection Clause of the U.S.
Constitution's Fourteenth Amendment protects the fundamental right to
participate equally in the political process and that "Amendment 2 singles
out one form of discrimination and removes its redress from consideration by
the normal political process."

Therefore, the court held, the state cannot enforce Amendment 2.

The state of Colorado appealed. Now the highest court in the land has this
hot potato in its lap. Whatever the court decides will have repercussions
across this land.

Seldom does the U.S. Supreme Court overrule a voter-initiative, although it
did so in its last session on term limits.

The high court is deferential to state legislation and state constitutional
amendments -- unless it recognizes that a fundamental right has been
violated.

In our system, a majority of citizens cannot vote away fundamental rights of
a minority.

The U.S. Constitution protects those rights against mobocracy. And
generally, the high court interprets the Constitution in that manner.

Colorado asserted, however, in its brief to the high court, that Amendment 2
does not violate the Equal Protection Clause, that the state supreme court
had created a new right in striking down Amendment 2.

The voters of Colorado, the state argued, have a right to govern themselves
as they see fit, and can "allocate power between themselves and their
elected representatives."

Colorado also contends that through the Tenth Amendment's powers reserved to
the states, it has a right to determine how it runs its government.

The state of Colorado will lose its case, if the high court makes an analogy
between racial discrimination and homosexual discrimination.

If the high court does see homosexuals as an identifiable class that
historically has suffered discrimination, it may subject Amendment 2 to
"strict scrutiny" and thereby the state must have compelling interests,
narrowly tailored to that end, in order for the amendment to survive.

If the court uses strict scrutiny, Amendment 2 will be found to violate the
U.S. Constitution -- without question.

There are two compelling interests asserted by Colorado in its brief to the
U.S. Supreme Court: religious rights and the right of association.

Certainly, one should not be forced to rent one's home or property to
homosexuals if one has a sincere religious scruple against it.

And certainly one should have the right to private associations in small
groups that exclude gays and lesbians.

The problem with Amendment 2, however, is that it's blanket prohibition is
too sweeping.

There are more precise, narrowly tailored ways of dealing with these issues.
There have been, for instance, anti-discrimination exclusions enacted based
upon sincere religious belief.

Colorado would like a more relaxed standard of review. So that it only has
to show a legitimate state interest. The state will argue for a lower
standard of review. It should lose that argument, although Chief Justice
William Rehnquist, and Justices Antonin Scalia and Clarence Thomas will
undoubtedly agree with Colorado.

Constitutional expert Laurence H. Tribe, of Harvard Law School, filed a
friend of the court brief with the U.S. Supreme Court that argues that
Amendment 2 in and by itself violates the Equal Protection Clause.

He wrote: "It embodies a deliberate commitment ... to make the full reach of
the state's system for making and enforcing laws and regulations available
only to some of the state's people and not to selected and specified
others."

Tribe argues that when a fundamental right is at issue, strict scrutiny is
triggered. Case law supports his point.

This case could have been argued on First Amendment grounds -- as a
violation of the right to petition the government for a redress of
grievances using the Privileges or Immunities Clause of the Fourteenth
Amendment which guarantees citizens that certain fundamental rights of
national citizenship are inviolate. That wasn't argued.

However it is possible, though it is rarely done, that the high court could
adopt this analysis and avoid the complexities of Equal Protection Clause
jurisprudence.

The sticking point for the justices will be whether to adopt a strict
scrutiny analysis or a lower standard. If a lower standard is adopted, the
final vote for or against Amendment 2 will be close.

In any case, Amendment 2 should be found unconstitutional.

It is the worst kind of discriminatory legislation. It plays into prejudices
not unlike those we saw in the 1950s when blacks were barred from public
schools, housing, hotels, restaurants, and other public and private
accommodations.

Look for a 6-to-3 decision to toss Amendment 2 in the trash heap of history.


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