The law, after all, is meant to express our values and our aspirations for our society.
-Senator Joe Lieberman1
Discrimination based on sexual orientation has been a fact of American social and political life for much of the country's history. As American values and aspirations change over time, so too do its laws evolve. Perhaps the greatest strength of American democracy is the document upon which it is built, the United States Constitution. The Constitution is living law that prescribes the goals of our democratic society and establishes the framework and the limits within which those goals may be pursued; it is flexible enough to accommodate the changing cultural face of America without losing its grounding in the fundamental ideals of equity and equality that underpin democracy.
In the latter half of the twentieth century attitudes toward the issue of discrimination against gays and lesbians have changed considerably. While it is by no means universally accepted in the United States that discrimination based on sexual orientation should be prohibited by law in all cases, a consensus is developing with respect to the issue of sexual orientation discrimination in what for the purposes of this paper I will refer to as "public" contexts. More people in the United States are coming to the conclusion that discrimination based on sexual orientation in contexts such as the political process, the workplace, housing, and public assistance, for example, is unfair and should be IMAGE FORMULA9
prohibited by law. The primary areas in American life in which there is still a pronounced lack of consensus on gay rights issues are those that I will refer to as "private" contexts, such as religion, the family, marriage, and private accommodations.3 Recognition of this dichotomy makes recent Supreme Court jurisprudence on gender issues easier to decipher and, in particular, informs the political and legal strategies of those who litigate toward the development of an American law that is more equitable to gays and lesbians.
Romer v. Evans is the Supreme Court case that arose as a result of the challenge to Amendment 2 of the Colorado state constitution. Colorado voters passed Amendment 2 in a statewide referendum in 1992. The provision, which became Article II sec 30b of the Colorado Constitution, read as follows:
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 IMAGE FORMULA12
or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.4
Most commentators believed that the effect of this law would be to eliminate any non-federal cause of action for discrimination based on sexual orientation and to prevent organs of the state and municipal governments from passing new laws or enforcing existing laws that prohibit discrimination based on sexual orientation. It was upon this interpretation of Amendment 2's language that the challenge to the law was made.
This paper explores the story of Colorado's Amendment 2 and seeks to provide a window into a key example of successful civil rights litigation as a culturally-informed6 process through which social change is advanced within the cultural and political boundaries of majority values. To this end, I will argue that Amendment 2 was ultimately invalidated as a result of the plaintiff's exposure of the law as an instrument designed to greatly limit the access of gay rights advocates to commonly available remedies against public context discrimination based on sexual orientation,7 an object generally inconsistent with mainstream American values. …