Courts Descriminate Essay, Research Paper
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In the last ten years, the federal courts have turned away every claim for protection under
the Constitution
made by lesbians and gay men. If lesbians and gay men want protection from
discrimination, the courts said, they
should look to legislatures, governors, city councils — the political branches — not to
the courts.
To a very large extent, the movement for lesbian and gay rights has taken the courts at
their word. The movement
has gone to the political branches for protection against discrimination. And while
lesbians and gay men have not
won every political battle in the past ten years, we have won a fair number. Between
1989 and 1995, eight states
passed laws outlawing discrimination, as did scores and scores of cities. At the urging
of their gay and lesbian
employees, many businesses adopted their own nondiscrimination policies, and many
cities and businesses began
to recognize lesbian and gay relationships.
Colorado’s Amendment 2 is the opposition’s answer to the gay rights movement’s
partial legislative success.
Amendment 2 says the state of Colorado will have two different rules for passing civil
rights laws–the usual one
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for most citizens, which lets the legislature or a city council decide who ought to be
protected from discrimination,
and a special rule for lesbians, gay men and bisexuals, which says they can never be
protected.
Amendment 2 is designed, quite simply, to end the political debate about whether
lesbians and gay men should be
protected by civil rights laws for good. The opposition’s answer, since it can not defeat
us every time, is to change
the rules.
In Romer v. Evans, the Supreme Court will decide if Amendment 2 violates the equal
protection clause of the
federal Constitution, as the Colorado Supreme Court said it did. The decision could
potentially affect the lesbian
and gay rights movement in three significant ways.
First, the result itself will be important, of course. The effort to obtain state laws
protecting lesbians and gay men
from discrimination continues. If the U.S. Supreme Court upholds the Colorado
Supreme Court’s decision, we
will be guaranteed the right to ask for the same civil rights protection that any other
group in America can ask for.
If it does not, in Colorado lesbians and gay men alone will be prevented from ever
getting civil rights protection
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unless we convince the voters to change the rules again. A decision like that would also
allow other states to
adopt similar changes in the rules for making laws, and in at least a few states,
opponents of the lesbian-gay rights
movement are sure to try to have similar rules changes adopted.
Second, the Court’s reasoning will be important. Our challenge to Amendment 2 makes
two arguments. First, we
say, the federal Constitution guarantees everyone the fundamental right to have an
equal voice in democratic self
government. Everyone should get the same chance to convince a state to adopt any
particular kind of law. That
means that any change in the structure of a state’s government that creates different
rules about how laws can be
passed for different groups of citizens ought to be examined by the courts with deep
suspicion, and should be
upheld only if it is absolutely necessary to achieve some compelling nondiscriminatory
public purpose.
This is the argument the Colorado Supreme Court accepted. If the U.S. S
Court accepts it, it means an
end to the recent rash of anti-gay initiatives that try to change the rules. Moreover, it
would prevent this kind of
device from being used against any other minority in the future (it has been used once
in the past, against
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African-Americans in the 1960s).
Our second argument is that the discrimination built into Amendment 2 — that civil
rights laws can be passed to
protect anyone but lesbians and gay men — can not be explained by anything other than
hostility to lesbians and
gay men. Dislike of a group of citizens, we argue, is never a legitimate reason for
treating them differently. This
argument — that dislike is never a “rational basis” for different treatment — has been
developed in the last ten years
as a way of obtaining at least some minimum protection from federal courts that are
unwilling to see government
policies that explicitly discriminate against lesbians and gay men as any more suspicious
than discrimination
between different sized-buildings in zoning regulations.
There are many cases in federal courts now where the issue is the constitutionality of
discriminating against lesbian
and gay Americans because other Americans do not like them. Among them are the
“don’t ask, don’t tell” military
cases, which are likely to reach the Supreme Court in the next year; employment cases;
cases from lesbian and
gay student groups, and anti-gay violence cases, among others. If the Court in Romer
reaches the rational basis
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issue, and agrees that hostility is not a legitimate basis for discrimination by
government, the anti-gay policies
involved in all those cases will be much more vulnerable.
Finally, the Court’s tone will be very important. While it is not true that the Court’s
1986 decision in Bowers v.
Hardwick completely explains the unwillingness of the federal courts to protect
lesbians and gay men from
discrimination, it has been a major part of it. In Bowers, the Court took a case about a
law that regulated the
private sexual behavior of everyone and made it into a case about “homosexual
sodomy.” The court’s opinion was
laced with invective and contempt.
The tone was not lost on federal courts, which took Bowers as an answer not just to
privacy questions involving
lesbians and gay men, but as an answer to virtually every constitutional question
involving lesbians and gay men,
implicitly deciding that the court which delivered the opinion in Bowers would be
hostile to any “gay” case. If the
Court in Romer continues to treat lesbians and gay men with the respect it showed last
term in the Hurley case,
that is sure to signal the lower federal courts that at least this part of the Bowers v.
Hardwick era is coming to an
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end, that the federal courts are not effectively closed to the constitutional claims of gay
men and lesbians.
Perhaps more important, the tone of Bowers was not lost on the nation. Many
Americans see the Supreme Court
as something of a constitutional conscience for the country. The message of Bowers
was that there is nothing
immoral about raw hostility to lesbians and gay men. If the Court adopts the tone of
Hurley and if it embraces that
basic American notion of a level playing field in politics and upholds the Colorado
Supreme Court, the public
debate about lesbians and gay men is likely to change significantly, and become much
more open to our plea for
equal treatment.