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Anti-Gay Rights Law Rejected High Court Rules States Cannot Single Out Homosexuals ‘To Make Them Unequal’

Tue., May 21, 1996

In a breakthrough victory for gay rights, the Supreme Court struck down Monday a sweeping Colorado constitutional amendment that would have denied legal protection to homosexuals.

Splitting 6-3, the justices said the voter-approved amendment improperly stemmed from animosity toward homosexuals, singling out gays and lesbians “not to further a proper legislative end but to make them unequal to everyone else.”

The decision, issued in the face of a blistering dissent and coming 10 years after the court upheld state laws making sodomy a crime, will strengthen gay-rights struggles throughout the nation.

It bolsters the crusade of gays and lesbians for protected status, which has produced laws barring discrimination based on sexual orientation in nine states, the District of Columbia and 157 cities and counties.

Moreover, the ruling provides some legal ammunition for gay activists seeking to permit homosexual marriages and invalidate the Clinton administration’s policy on gays in the military.

The ruling also dampens a conservative campaign to pass state anti-gay laws or amendments, such as in Idaho and Oregon, and to omit sexual orientation from existing anti-discrimination statutes.

“This is a major setback for the radical right, a crowning blow to its efforts to repeal laws that protect gays from discrimination,” said William Rubinstein, former director of the lesbian and gay rights project of the American Civil Liberties Union.

“What this case is about is prejudice. It says that pure prejudice can never be a justification for passing laws against gay people, and suggests that the court now will scrutinize any prejudice that went into the military policy against gays and … laws against gay marriages,” observed Rubinstein, a visiting professor at Stanford Law School.

Although the Clinton administration chose to stay out of the case, White House spokesman Mike McCurry said President Clinton “believes today’s decision was appropriate.” Colorado’s Amendment 2, passed by voters in 1992, was “inconsistent with our common values.”

But to Will Perkins, a Colorado Springs car dealer, “This is a sad day for America. This can be a step toward same-sex marriages, giving minority status to homosexuals … and allowing teachers to advocate homosexuality in the public schools.”

Perkins, chairman of Colorado for Family Values, which spearheaded the successful drive for the anti-gay amendment, said his group would consider options ranging from promoting a narrower amendment to urging the impeachment of the six justices who formed the majority.

They were the court’s centrists, Anthony M. Kennedy and Sandra Day O’Connor, and the court’s most liberal members - John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Kennedy, who remarked during oral arguments last October that “I’ve never seen a case like this,” repeated Monday that the Colorado amendment was unprecedented.

“It identifies persons by a single trait and then denies them protection across the board,” he explained.

“It is not within our constitutional tradition to enact laws of this sort,” Kennedy declared. “A law declaring that, in general, it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

“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.”

The outcome fueled a harshly worded dissent from Justice Antonin Scalia, who said the court’s “portrayal of Coloradans as a society fallen victim to pointless, hate-filled gay-bashing is so false as to be comical.”

The decision, he insisted, “has no foundation in American constitutional law, and barely pretends to.”

Joined by Chief Justice William Rehnquist and Justice Clarence Thomas, Scalia said, “If it is constitutionally permissible for a state to make homosexual conduct criminal, surely it is constitutionally permissible for a state to enact other laws disfavoring homosexual conduct.”

Where Kennedy saw Amendment 2 as removing equal rights from gays and lesbians, Scalia said it “prohibits special treatment of homosexuals, and nothing more.”

He said his colleagues had no business imposing upon all Americans elitist ideas that “animosity toward homosexuality … is evil” or that “opposition to homosexuality is as reprehensible as racial or religious bias.”

On the contrary, Scalia said, moral disapproval of homosexual conduct is as valid as disapproval of murder, polygamy or cruelty to animals.

Scalia called “insulting” and “preposterous” Kennedy’s suggestion that homosexuals are “politically unpopular.” Actually, they “enjoy enormous influence in American media and politics,” he said.

Then, lashing out at his colleagues, Scalia scolded them for “reflecting the views and values of the lawyer class.”

To show how “the lawyer class” feels about homosexuals, Scalia said lawyers who interview job applicants at law schools may reject them because they are Republicans, adulterers, went to the wrong prep school or hates the Chicago Cubs - but must pledge their willingness to hire homosexuals.

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