ARMIES of lawyers and legal advocates do battle today at the US
Supreme Court in a difficult Colorado case that may yield the most
significant civil rights ruling of the term.
The case, Romer v. Evans, is the first gay-rights case the high
court has taken in nine years - and it is shaping up to be the kind
of contentious "culture war" over rights and values increasingly
characteristic of the 1990s.
The Romer case pits the ability of a majority of voters in a
state to deny legal and political rights to homosexuals against the
right of a minority group to have access to legal rights under the
equal protection clause of the 14th Amendment.
The case flows from a 1992 popular referendum in Colorado.
Amendment 2 banned, by a 53 percent voter majority, all gay
antidiscrimination laws in the state. In 1993, the Colorado Supreme
Court struck down the referendum; the state then took its case to
the US Supreme Court.
Constitutional scholars worry that both sides have strong
arguments that cut deeply into fundamental principles American hold
"It's a basic collision between majoritarian democracy and
individual rights," says James Simon, author of "The Center Holds,"
a new book on the court. "Broad social implications arise when 53
percent of voters in a state can exclude a significant group of
citizens by what seems like official discrimination."
Both civil libertarians and states rights advocates are on
alert. Romer could curb years of legal battles and hundreds of
local ordinances protecting gays in housing and unemployment - and
send a larger message about individual rights.
Power of referendums
It may also deal with the power of voter referendums that are
popular, particularly in the West. California, for example, has a
referendum pending that would curb affirmative-action programs for
Dozens of "friend of the court" briefs have been filed on both
sides. Seven states, along with conservative Roman Catholics,
Baptists, Lutherans, and "family-values" groups, are supporting
Amendment 2. Seven other states, joined by liberal Jewish,
Methodist, Lutheran groups, and minority advocates such as the
National Association for the Advancement of Colored People (NAACP),
have filed to support gays as a minority.
The sweeping nature of Amendment 2 is a major issue in the case.
Normally, groups may lobby to change laws even after a political
defeat. But Amendment 2 wipes out all current Colorado ordinances
upholding gay rights and blocks political recourse for gays. As a
group, they would be banned from participation or lobbying in city
councils, the state legislature, and so on. Amendment 2 became the
prototype for similar referendums, later defeated, in Idaho and
In overturning Amendment 2, the Colorado Supreme Court did not
define gays according to their conduct. Instead, it ruled Amendment
2 unconstitutional because it denied a group its "fundamental
right" to the political process. …