Gay Rights at Stake in High Court Case

Kevin Tebedo and Bruce Loeffler live near one another in this scenic foothill city, but they look at each other across a cultural and political divide as great as the Rockies themselves.

Tebedo, a hotel manager who founded Colorado for Family Values, says “militant homosexuals . . . want to legitimize homosexual behavior as the moral, legal and ethical equivalent of the traditional nuclear family.” If they succeed, he fears, it “will annihilate the basis of our Western civilization.”

Loeffler, a professor at Colorado College, retorts that he and other gay men and lesbians are being maligned by “militant Christians” who “have created a hysteria about gays as depraved people, as child molesters who lust after your children. They have lied about us, stereotyped us [and] encouraged violence against gays.”

Three years ago, Tebedo and Loeffler fought their high-voltage battle before Colorado’s voters, and Tebedo won. To the surprise of pollsters and dismay of gay-rights leaders, a state constitutional amendment abolishing claims of discrimination based on sexual orientation won approval, 53% to 47%.

Now the battle moves to the U.S. Supreme Court, and the stakes are even higher. On Tuesday, the justices for the first time will hear a case on whether the Constitution’s guarantee of “equal protection of the law” bars bias against gays and lesbians.

Like the vote in Colorado, the court case has the potential to do grave damage to the cause of gay rights.

The Supreme Court, led by Chief Justice William H. Rehnquist, is inclined to defer to the states and to uphold the will of the majority. Its leading conservatives scoff at the notion of creating “new” constitutional rights.

In defense of Amendment 2, lawyers for Gov. Roy Romer play on both themes. People have the clear right to draw their own state constitution, they argue. Moreover, they note, discrimination against gay men and lesbians, unlike bias based on race, gender and ethnicity, has not been deemed unconstitutional.

If the high court upholds the Colorado measure, Tebedo expects as many as 10 other states to follow with their own laws stripping homosexuals of legal protections. Allies in Texas, Florida, Missouri, Ohio and Washington state, among others, are preparing anti-gay-rights measures, he says.

The cities of Cincinnati and Gainesville, Fla., already have enacted such ordinances--but like the Colorado amendment, they are tied up in legal challenges.

Gay-rights lawyers say they know they are fighting an uphill battle. Even if they win, that give them only the right to seek favorable laws from city councils and state legislatures.

“This is not the gay Brown vs. Board of Education,” said Matthew Coles, director of the ACLU’s Lesbian and Gay Rights Project. That 1954 ruling made racial segregation in public schools unconstitutional.

Gay men and lesbians have little hope that the Supreme Court will declare all discrimination against homosexuals unconstitutional. “If we win, we will have to keep fighting,” Coles said. “If we lose, it means we will never have anti-discrimination protection in Colorado.”

Beyond the legal issues, Loeffler says a Supreme Court ruling upholding Amendment 2 would send a devastating message to gay men and lesbians nationwide.

“I think it’s almost unimaginable,” he said. “It will be like the Supreme Court saying: ‘You are not welcome here.’ ”

It would not be the first time the high court has sent such a message.

In the 1986 case of Bowers vs. Hardwick, the justices voted, 5 to 4, that the constitutional “right to privacy” did not protect homosexuals from prosecution under anti-sodomy laws. Justice Byron R. White said it was “facetious at best” to say the Constitution’s right to individual liberty was intended to protect sexual activity between homosexuals.

In the decade since then, however, gay-rights activists have made slow but steady progress in winning protections against discrimination.

Although no federal law makes it illegal to discriminate based on sexual orientation, nine states (including California) and more than 130 cities (including Los Angeles) have enacted such measures. The Colorado cities of Denver, Boulder and Aspen enacted such ordinances about five years ago.

Some conservative and religious activists, fearing a decline in “traditional morality,” wanted to halt the march toward full equality for gay men and lesbians. In Colorado, they were joined by several civil rights leaders who argued that anti-bias laws should protect blacks and Latinos, but not others whose “behavior”--smoking and drinking as well as homosexuality--caused discrimination.

Tebedo said he concluded it was time to take a stand when a special commission in conservative Colorado Springs recommended in 1991 that the city adopt its own ordinance barring discrimination based on sexual orientation.

“We knew eventually we would have to confront the radical homosexual lobby, and we wanted to take the issue before the people,” he said.

Even gay-rights leaders concede that the amendment was cleverly conceived. Rather than condemning homosexuality as a perversion or denying jobs to gay employees, Amendment 2 simply declares that gay men and lesbians are entitled to “no protected status.”

The amendment bars all state agencies, municipalities and school districts from enacting measures that give gay men and lesbians “any minority status, quota preferences, protected status or claim of discrimination.”

In surveys following the 1992 election, many Coloradans said they voted for Amendment 2 not because they hated homosexuals, but because they agreed that gay men and lesbians were not entitled to “special rights.”

“That catch phrase ‘special rights’ stuck. We never countered it successfully. It was a very clever campaign,” said Richard G. Evans, a gay-issues adviser to Denver Mayor Wellington Webb and the lead plaintiff on the lawsuit challenging the constitutionality of Amendment 2.

The key words in the amendment are almost hidden: “or claim of discrimination.”

If the amendment takes effect, it will wipe out the anti-discrimination ordinances in Denver, Boulder and Aspen, as well as similar policies covering state workers and employees of state universities.

“It means you can lose your job or your house and you have no recourse. It’s a license to discriminate,” said Mary Celeste, a Denver lawyer.

Gay-rights activists say that blatant discrimination based on sexual orientation is rare in Colorado. The Denver anti-discrimination office that investigates such cases says it receives on average about a dozen complaints a year alleging discrimination in employment or housing because of sexual orientation.

Still, gay men and lesbians in the Denver area cite examples of discrimination they say they have encountered.

Paul Marshall says he and another gay man walked into a Denver area Burger King one Augustday. “A guy from behind the counter said in a very loud voice: ‘There’s two fags out here. Who’s going to serve them?’ ” Marshall said.

No one served them, and Marshall called the police, who filed a report on the incident. “It was so blatant and so malicious. I’d never encountered anything like that,” he said.

Gay activists who opposed Amendment 2 also tell stories of having their car windows shot out or finding notes on their windshields with messages such as, “You are NOT wanted here.”

“I had a little old lady come out to me at the polling booth and say: ‘Somebody ought to shoot you,’ ” said Rick Cendo, an investment adviser from Boulder.

“People have gotten the idea it is OK to discriminate,” Celeste said.

The two leading proponents of Amendment 2 discount anecdotes about anti-gay bias and assert that they have no problem with employing gay men and lesbians.

“What people do on their own time is none of my business,” said Will Perkins, a local Chrysler dealer who emerged as the key spokesman in favor of Amendment 2. In recent years, he said, he employed two lesbians, both of whom have since left his dealership.

“They were good employees, good people,” Perkins said. “Around here, I have more problems with inappropriate heterosexual behavior.”

Tebedo says two gay men worked at the hotel where he was the manager of guest services. “I promoted one of them,” he said.

“But if homosexuality becomes an impediment on the job, I want the ability to discharge that employee,” he said. “It’s just like with alcohol. If you drink on your own time, that’s your business. But if it becomes a hindrance to the business, then I want the ability to discharge that person.”

The Supreme Court has been silent on the issue of discrimination based on sexual orientation.

The Constitution says the government may not deny any person “the equal protection of the law,” but the justices have not read that command literally.

By their nature, most laws discriminate; a 16-year-old can get a driver’s license in most states, while a 15-year-old cannot. In California, thanks to 1978’s Proposition 13, one homeowner may pay eight times more in property taxes than a neighbor.

In the 1960s, the high court spelled out a two-tiered system for deciding “equal protection” cases. Because the 14th Amendment was adopted when slavery was abolished, the justices said its main purpose was to end discrimination against blacks. In the 1970s, the court extended this strict protection to include discrimination based on gender or ethnicity.

Repeatedly, the justices have refused even to hear appeals from gay military personnel, gay schoolteachers or others who say they were discharged because of their sexual orientation.

In the Colorado case, gay-rights lawyers chose to make an indirect attack on Amendment 2. They argued the amendment violated their rights under the Constitution to participate equally in the political process.

The Colorado Supreme Court agreed. By a 6-1 vote, it threw out Amendment 2 on the grounds that it made gays and lesbians a “targeted class” and left them “fenced out” of the political process.

The state’s lawyers appealed the case, Romer vs. Evans, 94-1039, and argued before the U.S. Supreme Court that this theory was so broad as to invalidate most state initiatives. For example, if the state’s voters were to ban smoking in public buildings, smokers could claim they were “a targeted class” who had been “fenced out” of the political process.

Most constitutional lawyers say the Supreme Court is likely to reject the approach taken by Colorado’s high court and uphold Amendment 2 as constitutional. Gene R. Nichol, dean of the University of Colorado Law School and an opponent of Amendment 2, said: “I’m pessimistic about the result in the U.S. Supreme Court.”

Even Coles, the ACLU lawyer, concedes that it will be a hard case to win.

“In my heart, I can’t believe the Supreme Court would say it’s OK to have two sets of rules--one for gays and one for everyone else,” he said. “But the lawyer in me is a lot more worried than that.”