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Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.

We cannot accept the view that Amendment 2’s prohibition on specific legal protection does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.

Romer v. Evans, U.S. Supreme Court (1996)

(Majority opinion).

The Court’s majority opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as Unamerican. But I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy, or cruelty to animals — and could exhibit even “animus” toward such conduct. Surely that is the only sort of “animus” at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old sodomy criminal laws that we held constitutional in Bowers.

Romer v. Evans (1996) (dissenting opinion).

The Cultural War

May landlords refuse to rent to homosexual partners when doing so would violate their conscience? May municipalities deny pension death-benefit payments requested by “life partner” survivors of homosexual employees? Must insurance companies ignore the distinctive health insurance risks associated with insureds who are homosexuals? May a public school district refuse to hire a teacher who is an avowed lesbian? These and many other homosexual issues have fueled an unprecedented and bitter cultural debate in this country during the last decade. But because homosexuals have recently become politically powerful in certain cities, they have managed to sponsor and enact expansive legislation that affords them special status. These ordinances typically prohibit “discrimination” against them in housing, employment, education, and health and welfare services.

The Colorado cities of Aspen, Boulder, and Denver recently enacted such ordinances which banned such “discrimination” against persons “because of their sexual orientation.” These municipal laws affording special protection of certain persons because of their immoral sexual conduct enraged many Coloradans who then sponsored a statewide referendum to amend the Colorado state constitution to prohibit homosexuals from being singled out for special treatment. After a contentious and caustic campaign, the so-called Amendment 2 was adopted in 1992 by a majority of voters in a statewide referendum. Homosexual “task forces” immediately filed suit to have the courts declare that Amendment 2 violated the U.S. Constitution which guarantees all citizens “equal protection of laws.”

The Romer v. Evans Decision

In a bitterly divided 6-3 decision released early this summer, the Supreme Court ruled in favor of the homosexual plaintiffs, holding that Amendment 2 evidenced an impermissible “animus” or “animosity” toward homosexuals which deprived them “equal protection of the law.” Homosexual groups across the country were jubilant, ecstatically declaring Romer v. Evans a victory exceeding their most optimistic expectations. The national press, particularly the weekly news magazines, ran stories of elated leaders of homosexual organizations pictured with raised and clenched fists of triumph.

Evangelical leaders, “family value” proponents, and most conservative constitutional scholars were stunned by the Romer v. Evans decision thwarting the citizenry of Colorado’s intent to preserve traditional sexual mores. The Romer v. Evans decision is rapidly earning notoriety for its glaring lack of legal rationale, substituted only by the Court’s transparent endeavor to legislate rather than interpret our nation’s laws. Also noticeably absent from the majority’s opinion was even a passing reference to its Bowers v. Hardwick decision of only ten years ago in which the Court upheld the constitutionality of the Georgia sodomy criminal statute. Judge Scalia, a Roman Catholic, filed a vigorous dissent castigating the majority for a decision devoid of “support in law or logic.”

Amendment 2

The state constitutional amendment challenged by homosexuals was an attempt by the voters of Colorado to repeal the controversial ordinances passed by several municipalities protecting persons discriminated against by reason of their supposed “sexual orientation.” The Amendment 2 read as follows:

Neither the State of Colorado nor any of its agencies, political subdivisions, municipalities or school districts shall adopt or enforce any law or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or entitle any person to have or claim any minority status, quota preferences, protected status or claim of discrimination.

Colorado and proponents of the amendment argued to the Court that Amendment 2 merely “puts gays and lesbians in the same position as all other persons” and “does no more than deny homosexuals special rights.” The State of Colorado also justified Amendment 2 as providing respect for other citizens’s freedom of association, in particular the liberties of landlords or employers who have personal or religious objections to homosexuality.

The majority opinion rejected these arguments, finding instead that:

Amendment 2’s sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests; it raised the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.*** We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end, but to make them unequal to everyone else. This Colorado cannot do.

Scalia’s Dissent

Justice Scalia, joined by Justice Clarence Thomas and Chief Justice Rehnquist, filed a strongly worded dissent arguing that the Court had absolutely no legal justification for preempting the will of a majority of Coloradans. The amendment denying special status to homosexuals, wrote Scalia, is “not only unimpeachable under any constitutional doctrine hitherto pronounced, it has been specifically approved by Congress and by this Court.”

In holding that homosexuality cannot be singled out for disfavorable treatment, this court contradicts a decision, unchallenged here, pronounced only 10 years ago in Bowers v. Hardwick, and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or is not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). This Court has no business imposing upon all Americans its own resolution of that debate, pronouncing that “animosity” toward homosexuality is evil. I vigorously dissent.

Addressing the majority’s first argument that the challenged amendment denied homosexuals equal protection of the laws, Scalia argues the amendment prohibits only special treatment of homosexuals and nothing more. The only denial of equal treatment the homosexuals have arguably suffered is this: They may not obtain preferential treatment without amending the state constitution. If this is denial of equal protection, Scalia writes, then “our constitutional jurisprudence has achieved terminal silliness.”

Special Protection for Homosexuals

The dissent also addressed the majority’s failure to recognize the legitimate rational basis for the amendment, i.e., the prohibition of special treatment for homosexuals. Scalia then chides the majority for not even mentioning the Bowers v. Hardwick decision:

In Bowers v. Hardwick we held that the Constitution does not prohibit what virtually all States had done from the founding of the Republic — making homosexual conduct a crime. It if is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. (After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal). And a fortiori it is constitutionally permissible for a State to adopt an amendment not even disfavoring homosexual conduct, but merely prohibiting special protection upon homosexual conduct.

Justice Scalia also criticized the logic of the majority opinion by referring to the analogy of the current prohibition of polygamy. In fact, the constitutions of Arizona, Idaho, New Mexico, Oklahoma, and Utah contain provisions even today declaring that polygamy is “forever prohibited.” Thus, argues Scalia, polygamists, and those who have a polygamous “orientation,” have likewise been singled out for a “much more severe treatment” than the mere denial of special treatment or favored status of homosexuals:

The majority’s disposition today suggests that these [anti-polygamy] provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local-option, basis — unless, of course, polygamists for some reason have fewer constitutional

rights than homosexuals.

Conclusion

Certainly the Romer v. Evans decision is one of the most deplorable Supreme Court rulings in recent years. As Justice Scalia laments, the absurd notions that homosexuals deserve preferential status and that Western society’s traditional disapprobation of homosexuality constitutes illegal discrimination, now have the imprimatur of the U.S. Supreme Court. Although the ordinances adopted by Denver, Boulder, and Aspen are not yet universal, it is not unreasonable to assume that countless cities and counties will now be compelled by homosexual proponents emboldened by Romer v. Evans, to pass similar laws requiring landlords, employers, public service establishments, and others to violate their moral and religious conscience by acquiescing to the increasingly offensive demands by the homosexual community, or face criminal or civil liability for violating these new laws.