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  •   Court Strikes Down Colorado's Anti-Gay Amendment

    By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, May 21, 1996; Page A01

    The Supreme Court yesterday struck down a Colorado constitutional amendment that barred government efforts to protect homosexuals from discrimination, saying no state may "deem a class of persons a stranger to its laws."

    The 6 to 3 ruling was a huge victory for the gay community because it clears the way for local governments to enact new measures designed to protect homosexuals from bias. The majority opinion was written with a generous tenor toward the legal rights of homosexuals in contrast to the court's last major decision on the subject, a 1986 ruling letting states make certain homosexual conduct a crime.

    Justice Anthony M. Kennedy, who wrote for yesterday's majority, said Colorado had no legitimate reason, no rational basis, for precluding all legislative, executive or judicial action designed to protect people based on their sexual orientation.

    Yesterday's ruling marked one of the rare times when the words of opposing justices – while delivered in the velvet and marble trappings of the country's most important courtroom – went to the core of a passionate social debate playing out in legislatures and living rooms over how people with a different sexual orientation should be treated.

    The majority opinion in the Colorado case and the angry dissent by Justice Antonin Scalia reveal little about how the court would rule on gay marriages, the military's prohibition on homosexuals and other looming gay rights issues. But they nonetheless become important entries in that debate.

    The ruling produced sharply polarized reactions on Capitol Hill and across the country, reflecting the extent to which the subject matter remains an undecided issue socially and politically even after the court took one important step toward resolving the legal debate over gay rights.

    Rep. Charles T. Canady (R-Fla.), chairman of the House Judiciary subcommittee on the Constitution, said, "American citizens should be outraged by the court's decision" and said he will hold a hearing on it.

    "It is no small matter for the court to invalidate a popularly adopted measure. . . . Quite apart from the particular context of the Colorado case, all Americans should be profoundly troubled by the effect of this decision on our democratic way of life," Canady said.

    Sen. John F. Kerry (D-Mass.) said, "I hope that this final word will help to quash anti-gay initiatives in some states and the anti-gay political pandering of some conservatives . . . this results in violence against gay men and lesbians and is anti-American hate-mongering of the worst order."

    By comparison to other responses, President Clinton offered a somewhat muted reaction even as he embraced the decision.

    White House press secretary Michael McCurry said "the president believes today's decision was appropriate. The Colorado law denied a group of citizens the right to participate effectively in the political process in Colorado, and the president believes that's bad public policy. It's also inconsistent with our common values and principles that make our nation strong . . ."

    The Colorado constitutional amendment was adopted in 1992 with 53 percent of the vote in a statewide referendum after some Colorado cities enacted ordinances prohibiting discrimination in jobs, housing and other matters. While never enforced because of court challenges, the Colorado amendment produced boycotts and years of argument over whether gays and lesbians should be protected under civil rights laws.

    In explaining the majority's rejection of the Colorado measure, Kennedy wrote, "First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group. . . . Second . . . the amendment seems inexplicable by anything but animus toward the class that it affects," and this, Kennedy said, violates the Constitution's guarantee of equal protection of the laws.

    The majority's suggestion that Colorado intended to harm homosexuals drew a biting dissent from Scalia, who called the law a "modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority . . ."

    Scalia said the court was placing "the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias."

    Whether homosexuality is reprehensible, Scalia said, should be answered by America's cultural debate over gay rights and is no business of the courts. Scalia, who accused the court of taking sides in the "culture wars," took the unusual step of voicing his vigorous dissent from the bench yesterday.

    As an endorsement of gay rights, the decision did not go as far as it could have because Kennedy actually rejected a legal analysis that would have put sexual orientation on footing similar to race or gender. Rather, he utilized the most lenient form of judicial scrutiny to conclude that Colorado's law had no legitimate government purpose. He also did not refer at all to the 1986 Bower v. Hardwick decision that upheld a Georgia anti-sodomy statute and said there is no constitutional privacy right to consensual homosexual conduct.

    In the majority with Kennedy were Justices John Paul Stevens, Sandra Day O'Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

    Dissenting with Scalia were Chief Justice William H. Rehnquist and Justice Clarence Thomas.

    Colorado's so-called Amendment 2, struck down in yesterday's Romer v. Evans, declared that no government entity in the state could adopt any policy under which "homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall . . . entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination."

    Part of the impetus for the referendum were ordinances in Aspen, Boulder, Denver and other Colorado communities that banned discrimination based on sexual orientation in housing, employment, education, public accommodations and health and welfare services. Supporters of Amendment 2 raised moral arguments against homosexuality at the time of the referendum, and state officials, who later defended the law, said states should have broad control over city social policies.

    Richard Evans, a Denver municipal employee who was active in gay causes, sued the state, saying that the prohibition deprived gays of their ability to urge their city councils to accord them specific protections from discrimination.

    The Colorado Supreme Court ruled for Evans, and Gov. Roy Romer (D) appealed.

    In other action yesterday:

    The court agreed to judge the validity of Georgia's new congressional district map, which features only one black majority district. The justices said they will study arguments by the Clinton administration and minority-rights activists that reapportionment imposed by a three-judge federal court panel in Georgia is unconstitutional.

    The court also told a federal appeals court to restudy its ruling that upheld Baltimore's ban on billboard ads for alcoholic beverages in light of a Supreme Court decision last week giving advertisers significantly greater protection from government regulation.

    © 1996 The Washington Post Company

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