High Court Enters 'Culture Wars' in Gay-Rights Case

By Robert Marquand, writer of The Christian Science Monitor | The Christian Science Monitor, October 1, 1995 | Go to article overview

High Court Enters 'Culture Wars' in Gay-Rights Case


Robert Marquand, writer of The Christian Science Monitor, The Christian Science Monitor


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 dear.

"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 minorities.

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 Oregon.

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. …

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