Hearing their first gay rights case in nearly a decade, Supreme Court justices were troubled Tuesday by a Colorado constitutional amendment that denies a single group - homosexuals - the opportunity to seek local laws protecting them from discrimination.
Justice Anthony M. Kennedy said he had never known a state to try to “fence out” a class of people.
Justice Ruth Bader Ginsburg said if this had happened to women before they had won the right to vote, women would not have been able to generate support at the local level to build a national movement for suffrage.
“In all of history there has ever been anything like this?” she asked.
Even Justice Antonin Scalia, who was the most openly approving of Colorado’s amendment to its constitution barring gay rights laws, questioned whether the state could target people who may be homosexuals but who do not engage in any homosexual conduct.
Heard in the narrow confines of the justices’ gold-trimmed, red-velvet-draped courtroom, the Colorado conflict raises broad new questions on how an individual’s homosexuality affects his or her standing in society.
The case will determine whether a state’s voters can put a stop to all local policies that would protect homosexuals from discrimination based on their sexual orientation. The gay activists who challenged the Colorado amendment say that violates their federal constitutional right to equal protection of the law.
With gay men and lesbians becoming a growing political force and lawsuits over gay rights increasing, the case is likely to be among the most watched disputes of the term.
The Supreme Court last issued a major decision on gay rights in 1986, when it ruled that states could outlaw homosexual conduct between consenting adults.
While many of the justices were critical Tuesday of the amendment striking down antidiscrimination ordinances, they mostly expressed frustration over not knowing how broadly it could affect homosexuals. Justice Stephen G. Breyer asked whether Amendment 2 would bar police departments from writing policies to fight “gay bashing.” Ginsburg asked whether it would allow hospitals with scarce resources to refuse to treat homosexuals.
A ruling, which is still tough to predict, is not likely to be announced for several months.