Supreme Court to Consider Revival of Gay Rights Ban

The Supreme Court agreed Tuesday to consider reviving the controversial Colorado initiative that would strip lesbians and gay men of legal protection based on their sexual orientation.

The case, to be heard in October, will mark the first time in nine years that the justices will rule in a gay rights dispute.

But the high court will not decide whether official discrimination against gays violates the Constitution. That basic question, which has arisen in the military cases still in the lower courts, has yet to be answered.

Instead, in the Colorado case, the justices will rule on whether the states can “fence out an independently identifiable class of persons” from seeking special protection in the legislature or a city council.

The Colorado Supreme Court used this rather unusual rationale to strike down Amendment 2, the 1992 ballot initiative approved by 53% of the state’s voters.

The amendment says that neither the state nor any of its agencies, cities or schools may uphold “any claim of minority status, quota preferences, protected status or claim of discrimination” based on “homosexual, lesbian or bisexual orientation.”

Tuesday’s high court action is a bad omen for gay-rights advocates. Under Chief Justice William H. Rehnquist, the court has regularly upheld state laws reflecting the wishes of the majority. The conservative justices often rail against lower courts that create “new rights” under the Constitution.

During the 1960s, a more liberal court struck down state initiatives, including a California measure, that would have nullified equal housing laws. Since then, however, the more conservative court has said that these 1960s-era precedents are limited to matters of racial discrimination.

In 1992, a group called Coloradans for Family Values pressed their initiative because they said they wanted to halt the trend toward giving gays a “protected status” and making them beneficiaries of “affirmative action programs.” Backers of the amendment raised the specter that landlords would have to rent to gay couples and that church schools could be forced to hire homosexual teachers.

But gay-rights lawyers said that the amendment would deprive persons of fair treatment simply because of their sexual orientation. If put into effect, the amendment would repeal anti-discrimination ordinances that protected gays in Denver, Boulder and Aspen, as well as Gov. Roy Romer’s executive order barring such discrimination in state government.

The amendment has never taken effect, however. A Denver judge blocked its enforcement, and in October the state Supreme Court struck it down on a 6-1 vote as violating the U.S. Constitution.

Speaking for the state court, Chief Justice Luis Rovira said that the amendment made gays “a targeted class” who could not “seek legislation that would protect them from discrimination.”

“The rights of any minority should not be swept away by popular vote,” said Kevin Cathcart, executive director of the Lambda Legal Defense Fund in New York, which aided the challenge to the Colorado initiative.

Romer and state Atty. Gen. Gale Norton, in their appeal to the high court, argue that the losing side in any statewide ballot fight can claim that it no longer can win favorable legislation in cities or counties.

For example, they say in their brief, if a state’s voters pass a constitutional amendment requiring public hospitals to provide abortions for poor women, those morally opposed to abortion would be similarly deprived of the right to win anti-abortion measures in the state legislature or city council.

“A state ban on smoking in public places would ‘fence out’ smokers from the local political process,” Norton said in her brief. “State referenda outlawing prostitution, casino gambling or drug use would . . . burden the rights of the independently identifiable groups.” On Tuesday, the justices handed down orders rejecting nearly 500 appeals and agreed to hear just the Colorado case (Romer vs. Evans, 94-1039). Romer is appealing, he said, because as the state’s top elected official he was obliged to seek a final court ruling on the issue.

In 1986, the Supreme Court dealt the gay rights movement one of its worst setbacks when it upheld a Georgia anti-sodomy law. By a 5-4 margin in Bowers vs. Hardwick, the court said the constitutional right to privacy does not protect sexual activity between gays.

But the 14th Amendment also says that no person may be denied “the equal protection of the laws.” In the past, the court has read that phrase to mean that discrimination based on race, religion, national origin or gender is almost always unconstitutional.

Other types of official discrimination are permitted, so long as the government has a reason for it.

Meanwhile, the court by a 8-1 vote ruled that Amtrak and similar federally funded corporations must abide by restrictions imposed by the U.S. Constitution.

The ruling in the case (Lebron vs. Amtrak, 93-1525) could prove significant as Congress and the states move to shift more government duties to corporate entities. The case arose when Amtrak refused to let a billboard artist display a “political” advertisement on a giant screen in New York’s Penn Station.

Normally under the First Amendment, a government agency cannot discriminate against someone because of his or her message. However, the U.S. appeals court in New York ruled that Amtrak, the federally funded rail passenger corporation, is essentially private, not public. Disagreeing, the high court noted that Amtrak was created by Congress, operates with federal funds and is governed by a board appointed by the President.