Academic journal article Argumentation and Advocacy

"A Stranger to Its Laws": Freedom, Civil Rights, and the Legal Ambiguity of Romer V. Evans (1996)

Academic journal article Argumentation and Advocacy

"A Stranger to Its Laws": Freedom, Civil Rights, and the Legal Ambiguity of Romer V. Evans (1996)

Article excerpt

In the modern world, incremental legal change was the true test of lasting constitutional civil rights litigation. Classical liberal ideology privileges legislative authorities to manage social change, but if these forums abrogated the rights of the needy, the judiciary would, in due time, use essential constitutional principles to set things right, to restore lost civil rights. Of course, the paradigmatic example of this process is the Supreme Court's rejection of segregation, and Plessy v. Ferguson (1896), in its 1954 Brown v. Board of Education decision. Even though it took fifty years, the judiciary ultimately corrected its own error and fomented fundamental social change.

But in the postmodern era, the once confident American judiciary has found itself assailed by the strident objections of an increasing number of disenfranchised and disempowered communities. Perhaps no case better illustrates the complications of postmodernity for legal argumentation than the recent Supreme Court cases concerning the civil rights of gay and lesbian Americans. For much of American legal history, gays and lesbians have been invisible, and only recently have the courts openly discussed their civil rights. Most notably, in Bowers v. Hardwick (1986), the Supreme Court held, 5-4, that the "act of homosexual sodomy"(1) was not "protected as a fundamental right" because of the "millennia of moral" teachings that proscribed such behavior (p. 197). In the decade since Bowers, the federal courts have reached conflicting conclusions concerning the military service of gays and lesbians, child custody issues, same-sex marriages, and insurance discrimination. In most of these cases, gays and lesbians faced the Bowers precedent that often blocked egalitarian reform.

Despite the Bowers decision, though, optimistic civil rights activists contend that change is forthcoming. Their optimism was buoyed by a 6-3 majority opinion of the Supreme Court in Romer v. Evans (1996), that struck down Colorado's Amendment 2 as an unconstitutional infringement of the "political" rights of gays and lesbians. One gay rights activist, Thomas Stoddard, claimed that "gay people will feel embraced by the highest judicial court of the land" (quoted in Nagourney, 1996, p. 4). A writer for the Wall Street Journal claimed that this ruling would mean that anti-bias legislation would be upheld in nine states and more than 100 cities ("The Supreme Court," 1996, p. 1). Detractors like Kevin Tebedo worried that the "homosexual political lobby" will increase "its efforts in the public schools, in the public square, to try and force this nation to affirm and legitimize open homosexuality" (qtd. in Moss, 1995, p. 28).

Framed within the traditional discussions of liberalism, conservatism and American jurisprudence, the Romer decision is, seemingly, anomalous. Historically, gays and lesbians have not been considered a "suspect class," and most discriminatory legislation was upheld using the minimal rational relationship test.(2) Yet the Romer decision is praised as a watershed event in the evolution of gay and lesbian rights in the United States. Given the legally confusing nature of this case, and the praise it elicited from civil rights activists, how do rhetoricians explain the Romer decision? We offer a reading of this case that eschews traditional and formalistic legal analysis in favor of more critical approaches to understanding the role of law in lived experience and communal life. In particular, we see Romer as an opportunity to engage in a "critical rhetoric," and specifically in a "critique of freedom" (McKerrow, 1989). We maintain that the praise for Romer is premature and ignores the contextual and legal factors that adhere to the case and that undermine its civil rights potential. As such, we believe Romer should be read skeptically, critically, and with pause given its place within the trajectory of legal rhetorics addressing the civil rights of gays and lesbians. …

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