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Anti-Gay Rights Law Rejected Colorado ‘Cannot So Deem A Class Of Persons A Stranger To Its Laws’

Tue., May 21, 1996

In a dramatic victory for gay rights, the U.S. Supreme Court struck down Monday a Colorado measure it said would deny homosexuals constitutional protection and make them “unequal to everyone else.”

Despite the ruling, the battle over Idaho’s proposed anti-gay rights initiative will continue.

“It would have been nice if the Idaho Citizens Alliance would withdraw the initiative,” said Alicia Flinn of Decline to Sign, which is fighting the proposal. “Why put the people of Idaho through this when it’s costly, divisive, unnecessary and unconstitutional? But they won’t, so we have a campaign to run.”

The director of the Idaho Citizens Alliance conceded that the 6-3 Supreme Court ruling, involving a measure passed by Colorado voters in 1992, is a setback. But Kelly Johannsen said the decision will not stop the signature drive to put the anti-gay initiative back on Idaho’s ballot.

“In fact, I think it’s going to kind of fuel a fire for the importance of this issue,” she said. “We agree with the three justices who said the Colorado amendment was just trying to stop special treatment.”

Colorado’s constitutional amendment, banning laws that protect homosexuals from discrimination, “identifies persons by a single trait and then denies them protection across the board,” said Justice Anthony M. Kennedy, writing for the court majority.

“It is not within our constitutional traditions to enact laws of this sort,” he wrote.

Such anti-discrimination laws do not grant homosexuals special rights, Kennedy said, but give them “protections taken for granted by most people either because they already have them or do not need them.”

Kennedy wrote that one rationale advanced for the amendment was that it protected landlords or employers with personal or religious objections to homosexuality. But he said the amendment did not relate to that purpose.

“The amendment seems inexplicable by anything but animus toward the class that it affects,” wrote Kennedy. “A state cannot so deem a class of persons a stranger to its laws.”

In a stinging dissent, Justice Antonin Scalia accused the majority of “imposing upon all Americans” the pronouncement that “animosity toward homosexuality…is evil.”

Scalia called the amendment “Colorado’s reasonable effort to preserve traditional American moral values” and added that it was not the courts’ business “to take sides in this culture war.”

His dissent was joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas.

Joining Kennedy’s majority opinion were Justices John Paul Stevens, Sandra Day O’Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

“I think it’s a real travesty of the judicial system,” said Scott Henrickson of Coeur d’Alene, who worked to pass the 1994 version of Idaho’s anti-gay measure. “The majority said this is what we want and yet some judges said we know better than you do.”

The Idaho proposition, similar to one that failed by fewer than 3,100 votes in 1994, would ban state and local laws protecting homosexuals from discrimination and prohibit using tax money or the public schools to portray homosexual behavior as acceptable.

The casualties of such a law could extend to anyone even suspected of being a gay or lesbian, said Flinn of Decline to sign. “They could be fired from their job or denied housing for that reason and have no legal recourse,” Flinn said.

State Attorney General Alan Lance said last July that the restrictions on government appear to violate the free speech guarantees of the federal constitution. Lance noted that the decision in the Colorado case would settle the debate over the equal protection questions.

Monday’s ruling, however, cannot be used to stop the petition drive. The Idaho Supreme Court ruled in 1986 that the initiative process is identical to the legislative process and the courts do not interfere until a law is enacted, either by legislators or voters.

The Idaho Citizen’s Alliance won’t say exactly how many signatures it has collected so far in its drive to win a place on the November ballot. Founder Kelly Walton has said only that the drive is in about the same position as it was in 1994 when it was successful. The alliance needs 41,335 registered voter signatures by July 5 to qualify the initiative for a vote.

, DataTimes ILLUSTRATION: Color Photo

The following fields overflowed: CREDIT = From staff and wire reports Staff writer Ken Olsen contributed to this report.

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