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Justices Skeptical of Ban on Gay-Rights Laws

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Washington

Several U.S. Supreme Court justices expressed skepticism last week that a Colorado constitutional amendment that pre-empts any state or local legal protections for homosexuals can pass muster under the U.S. Constitution.

During oral arguments on Oct. 10 in Romer v. Evans (Case No. 94-1039), at least six members of the high court expressed some degree of concern about whether Amendment 2, as the Colorado measure is known, violates the federal constitutional right of gay citizens to equal protection under the law.

Amendment 2, which has not been allowed to take effect, would bar governmental entities in Colorado, including school districts, from enforcing any law or policy that protects gay people from discrimination.

The legal battle has been closely watched by educators in Colorado because of Amendment 2's potential ramifications for gay employees and students.

A number of school districts in the state have added sexual orientation to their anti-discrimination policies, including the Boulder Valley district, which joined with several cities and gay residents in challenging the amendment. (See Education Week, Oct. 4, 1995.)

Amendment 2 passed as a ballot initiative in 1992 with 53 percent of the vote. While supporters of the measure sought to roll back legal protections for gay residents, the state has defended the measure by emphasizing the principle of state sovereignty over local governmental power.

"This case involves a challenge to the authority of how a state allocates" its political authority, Timothy M. Tymkovich, the lawyer representing the state, told the justices last week.

Practical Implications

The Colorado Supreme Court struck down Amendment 2 on the grounds that it made it more difficult for one class of people to participate fully in the political process.

But the U.S. Supreme Court justices were as eager to explore the practical implications of Amendment 2 for gay rights as they were to debate constitutional theories about political participation.

Justice Sandra Day O'Connor wondered whether, under the amendment, "a public library could refuse to allow homosexuals to borrow books."

Justice Anthony M. Kennedy, who like Justice O'Connor could be a swing vote in the case, said he had never seen such a sweeping measure.

"Here, the classification is adopted to fence out ... a class [of people] for all purposes," he said.

Justice Stephen G. Breyer wondered whether the amendment would prohibit police departments from adopting policies targeted to fight "gay bashing."

Mr. Tymkovich said that gay citizens would continue to enjoy general legal protections afforded to all citizens.

'Special Rights?'

He found an ally in Justice Antonin Scalia, who suggested that Colorado should be allowed to adopt a statewide ban on protections for gay residents based on the rationale that "state subdivisions are giving preferences that the people of the state thought undesirable."

Jean E. Dubofsky, a former Colorado Supreme Court justice who represents the Amendment 2 opponents, later debated Justice Scalia on the question of whether extending protection from discrimination based on sexual orientation provided a "special right" to homosexuals. He argued that such protections were a special benefit not available to the public at large.

"I don't think there is such a thing as special rights and special protection," Ms. Dubofsky replied. "There is a right of every person to be free of arbitrary discrimination."

A decision in the case is expected by next June.

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