Academic journal article Vanderbilt Law Review

Democracy, Kulturkampf, and the Apartheid of the Closet

Academic journal article Vanderbilt Law Review

Democracy, Kulturkampf, and the Apartheid of the Closet

Article excerpt

In the generation after World War II (1945-69), homosexual intimacy was a serious crime in Colorado and other states, as was any kind of "lewdness" or homosexual solicitation; people suspected of being homosexual were routinely dismissed from federal, state, and private employment.1 In the generation after Stonewall (1969-97), Colorado's legislature repealed the state's consensual sodomy law, and the governor by executive order prohibited state employment discrimination on the basis of sexual orientation. The cities of Aspen, Boulder, and Denver enacted ordinances prohibiting private sexual orientation discrimination in housing, employment, education, public accommodations, and health and welfare services.2 In 1992, the voters of Colorado adopted the following amendment to the state constitution:

No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. 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 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.3

The United States Supreme Court struck down Amendment 2 in Romer v. Evans4 based on its conflict with the Equal Protection Clause.5 Writing for himself and two other justices, Justice Scalia dissented, starting with the premise that "[t]he Court has mistaken a Kulturkampf for a fit of spite,"6 and arguing at length that the Court's opinion was inconsistent with both precedent and the ordinary operation of the democratic process.

Justice Scalia was using the term "Kulturkampf" out of context. Kulturkampf, a German word for "culture war" or "struggle," was a nineteenth century campaign by Bismarck's German Empire to domesticate the Roman Catholic Church in public culture.7 The most noted national Kulturkampf in the United States was the nineteenth century campaign by the federal government to force conformity on the Church of Jesus Christ of the Latter Day Saints ("LDS Church"), a campaign that included statutes criminalizing cohabitation outside of marriage, depriving cohabiting or polygamous Mormons of the rights to vote and to serve on juries, stripping the same rights from anyone advocating polygamy, and confiscating the property of the LDS.8 The Supreme Court upheld the anti-Mormon Kulturkampf in most respects. The anti-Mormon decision Davis v. Beason9 was one of two precedents invoked by Justice Scalia to support the constitutionality of Amendment 2.'o The other precedent cited was Bowers v. Hardwick.ll

Justice Scalia's charge was that Romer is inconsistent with both the rule of law and the system of democracy. In this Comment, I join Professor Schacter and other scholars in responding to Justice Scalia's charge.'2 Romer subserves, rather than undermines, the rule of law in America's representative democracy. I make three kinds of arguments. The first argument challenges Justice Scalia's invocation of "majority-rules" democracy as the basis for legitimate state decisionmaking. According to the Framers' design, which guaranteed "republican" governance at both the state and federal levels, majoritarianism is not the litmus test for government legitimacy. Indeed, the Framers expected law to be shaped by courts as well as by popular majorities. The second argument combines gaylegal history with a theory of courts: A key role for the judiciary is to resist Kulturkampf, and to help the political system repudiate the legacy of Kulturkampf. A third argument is representation-reinforcing:l3 By invalidating local rules protecting openly gay people against job discrimination, the Colorado initiative impaired the ability of lesbian, gay, and bisexual citizens to exercise their political rights. …

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