A Battle, Not the War

By Kaplan, David A.; Klaidman, Daniel | Newsweek, June 3, 1996 | Go to article overview

A Battle, Not the War


Kaplan, David A., Klaidman, Daniel, Newsweek


Gay activists won a major victory in the U.S. Supreme Court last week. But for all the celebrating they have far to go before gaining equality before the law.

THE CODED MESSAGE DRIFTED across Kim Mills's pager quietly last Monday. It was a stream of 7s, and its meaning was crystal clear. Mills, a spokesperson for the Human Rights Campaign, a gay-rights group in Washington, had arranged for a friend at the U.S. Supreme Court to contact her when the justices issued their long-awaited ruling in Romer v. Evans. The 7s meant the court had thrown out Colorado's constitutional amendment that barred any legislation protecting homosexuals from discrimination. The headquarters of the Human Rights Campaign, which had helped bankroll the legal challenge to Amendment 2, burst into celebration. Its 60 employees spilled into the hallways, exchanging high-fives and chanting, "6-3! 6-3!"--the vote at the high court. A few wept. Says executive director Elizabeth Birch: "I thought of Thurgood Marshall and all the civil-rights lawyers who struggled to achieve Brown v. Board of Education."

But even Birch doesn't think Romer gives gays and lesbians that kind of victory. The Brown decision in 1954, in a case masterminded by Marshall, really was a landmark for black Americans. In outlawing school segregation, the court reversed long years of social policy and triggered the modern civil-rights revolution. By contrast, last week's decision created no new rights for gay Americans and failed to declare them a specially protected group like blacks or women. To be sure, Romer has momentous symbolic value. It's the first time the justices have hinted they may be sympathetic to constitutional claims by gays and lesbians. The only other time the court visited the issue, 10 years ago, the justices were downright antagonistic, ruling in Bowers v. Hardwick that nothing barred the states from making sodomy a crime.

Yet symbolism only goes so far. It doesn't guarantee housing, medical care or a job--all of which can still be denied homosexuals simply because they're gay. In virtually every state and municipality, that kind of discrimination remains legal and is unaffected by Romer. All the decision says is that a state constitutional amendment can't prevent the Aspen or Boulder city councils from passing anti-discrimination laws if they so choose. Indeed, the Colorado legislature tomorrow could accomplish the goal of the amendment without any legal problems. How? Pass a law banning discrimination in employment, housing and so forth based on race, religion and other well-accepted classifications--but leave out sexual orientation. Then, explicitly say the law pre-empts all local legislation. That way, unlike Amendment 2, sexual orientation is not singled out.

Just two days after the ruling, gay activists last week learned how quickly the pendulum can swing. President Clinton--an ally on many gay issues--stunned them by announcing he would sign a bill in Congress, cosponsored by Bob Dole, denying federal recognition of same-sex marriages. (No state yet permits such marriages, but Hawaii may soon.) As a practical matter, that legislation could have far wider consequences for the gay movement than Romer. While it's possible the congressional bill itself is unconstitutional--a violation of the guarantee that each state give "full faith and credit" to the decrees of other states--that's a court fight years down the road and is probably a loser.

The gay-rights movement has become a potent political and social force in the country, much as civil rights was in the '60s and women's rights in the '70s. From the presidential campaign (box, page 30) to local curriculum wars to adoption proceedings, the issues have proliferated. But ambivalence runs deep. A NEWSWEEK Poll last week underscored how far the gay-rights movement has come--and how far it has to go before it can claim victory. Of 779 people polled, 73 percent acknowledged that gays were victims of at least some discrimination, but only 27 percent believe more effort is needed to protect homosexual rights. …

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