Government to Stay Out of Legal Battle Over Gay Rights

The Clinton Administration announced Thursday that it will stay out of a Supreme Court battle over whether states and cities can strip lesbians and gays of legal protection against discrimination, a move that gay rights activists immediately derided as cowardly.

U.S. Atty. Gen. Janet Reno said that the Justice Department will not file a friend-of-the-court brief and will take no legal position in the case, which challenges Colorado’s anti-gay rights initiative. “There was no federal program or federal statute involved and so we determined that at this point the federal government should not participate,” Reno said.

White House Press Secretary Mike McCurry said that President Clinton is “fully supportive” of Reno’s decision.

For months, Administration lawyers have been divided over whether they should enter the case and support the challenge to the Colorado initiative. The issue apparently was complicated by the Administration’s obligation to defend its own anti-gay rights policy for military personnel.

Clearly the issue has strong political overtones. Clinton and his advisers have acknowledged that they were hurt politically two years ago when, shortly after taking office, Clinton tried to end the military’s strict exclusion of gays.

Gay rights lawyers and activists accused the Administration on Thursday of abandoning its commitment to civil rights and caving in to political pressure.

“It is disappointing that the Clinton Administration refuses to stand up for basic civil rights for all people,” said Suzanne Goldberg, an attorney for the Lambda Legal Defense Fund in New York. “There’s no question this was a political decision.”

Daniel Zingale, political director for the Human Rights Campaign Fund in Washington, said that the decision “just gives aid and comfort to the anti-gay extremists. This will impress the folks who don’t support the President anyway.”

Administration officials insisted that their decision was based solely on legal grounds. McCurry said the President was “aware of the case [but] it was the attorney general’s decision based on her reasoning, her examination of the law.”

A Washington attorney defending the initiative on behalf of the state of Colorado said that the Administration was stymied by its need to defend the Defense Department policy that continues to exclude gays from the military. That policy recently was struck down by a federal judge in New York; a case is expected to reach the Supreme Court eventually.

“I don’t think it’s humanly possible to argue that Amendment 2 [in Colorado] is unconstitutional but their gays-in-the-military policy is constitutional,” said the attorney, Carter G. Phillips.

The disputed Colorado initiative does not call for discrimination against gays and lesbians. However, it prevents gays from bringing claims of discrimination based on sexual orientation. As a practical matter, it would invalidate anti-discrimination ordinances in Denver, Boulder and Aspen.

Colorado’s Amendment 2 proclaims a state constitutional policy of “No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation” and states that gays may not bring “any claim of minority status, quota preferences, protected status or claim of discrimination.”

It won the approval of 53% of the state’s voters but was struck down by the state’s courts.

The Colorado Supreme Court said that the amendment denies gays equal protection of the laws guaranteed by the U.S. Constitution because it “fences out . . . an identifiable class of persons” from seeking legal protections. The justices agreed to hear the state’s appeal of that conclusion.

Last month, California Atty. Gen. Dan Lungren, joined by counterparts in six states, filed a brief supporting Colorado and arguing that judges should not take away “the right of the people [as a whole] to set public policies.”

The justices will hear arguments in the case (Romer vs. Evans, 94-1039) in October and issue a ruling early next year.