High Court Enters 'Culture Wars' in Gay-Rights Case
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. This right went beyond any US Supreme Court ruling on gays - though the Colorado judges used US Supreme Court decisions as precedent.
For this reason, many scholars say the US Supreme Court took the Romer case to reverse the Colorado court - sending the message that only the US Supreme Court will create such fundamental laws.
The last high-court ruling on gay rights, Bowers v. Hardwick, in 1986, was a close decision. In a 5-to-4 ruling , the justices stated that gays and lesbians had no ''fundamental rights'' that derive from their conduct.
Justice Byron White argued that nothing in American legal history or tradition sets homosexuality apart for special rights - rather, the opposite. In dissent, Justice Harry Blackmun argued that Americans had a long history and tradition of privacy.
Five of those justices are now gone. (Retired Justice Lewis Powell has since recanted his majority vote on Bowers.) The crucial question is: Will the high court emphasize equal protection or federalism?
Legal status for gays
Either way, the status of gays under the equal-protection clause is a key question. The law protects any ''suspect class.'' But so far, the Supreme Court has allowed only race to be categorized as a suspect class. In Romer, gays and lesbians and those siding with them are not asking to be a suspect class. Rather, the defendants want to be defined simply as the Colorado Supreme Court defined them: a ''group'' being denied fundamental rights.
Scholars say the best outcome gays can expect is an intermediate ''quasi-suspect'' status, the standard now applied for women. ''The court won't do for gays what 'Brown' did for blacks,'' says Thomas Baker, a dean of Texas Tech law school.
Colorado will argue that the status of gays is not ''compelling''enough to outweigh a popular vote. Local gay-rights laws in Colorado, they state, began to erode the rights of employers, church congregations, and property owners, and voters used democratic means to stop it.
''This isn't a gay-rights case,'' says Richard Duncan, an Omaha, Neb., attorney who co-wrote a brief with Judge Robert Bork on behalf of Colorado. ''The people of Colorado wanted a uniform policy on gay ordinances. They voted. But in the name of democracy, that process was invalidated. Is the Supreme Court now going to say that a local ordinance can't be overturned by a popular vote? That makes local government the highest arbiter.''
In a widely discussed brief, law professors Laurence Tribe of Harvard and Kathleen Sullivan of Stanford say Romer is a civil-rights case.
''Never since the enactment of the 14th Amendment has this Court confronted a measure like Amendment 2,'' the Tribe brief states, ''a measure that, by its express terms, flatly excludes some of a state's people from eligibility for legal protection from a category of wrongs.''