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. Supreme

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.