Gay-rights advocates were cheered by arguments in the Supreme Court on Tuesday, as two moderate-conservative justices voiced skepticism over a controversial Colorado measure that would bar anti-discrimination laws to protect lesbians and gays.
To prevail, gay-rights lawyers need to win over at least one of the court's five conservative-leaning justices. Their prospects brightened in the opening moments of Tuesday's showdown when both Justices Anthony M. Kennedy and Sandra Day O'Connor said they were troubled by the far reach of the Colorado amendment.
"I've never seen a case like this," said Kennedy, in which one group of persons is singled out and denied the right to seek anti-discrimination laws.
O'Connor said the 1992 state amendment would appear to allow public libraries to refuse to lend books to gays and public hospitals to refuse to treat lesbians or gay men.
"And there would be no relief from that," she commented.
But Justice Antonin Scalia carried the argument for the state. He noted the Constitution allows all sorts of arbitrary discrimination, whether against people with blue eyes, people who comb their hair in an odd way or people who practice bigamy.
"If a landlord says, 'I don't want to rent to you. I don't like Italians,' that's my tough luck, unless there is some law against it," Scalia said. The Constitution leaves those decisions about discrimination to the voters or their representatives, he maintained.
Afterward, the gay-rights lawyers expressed a new optimism.
"We think the argument went very well, and we feel most encouraged," said Matthew Coles, director of the ACLU's National Lesbian and Gay Rights Project. "We think the court got it."
Jean E. Dubofsky, the former Colorado state justice who argued for striking down the amendment, said she was now "very hopeful" about the outcome.
On Friday, the justices will vote in secret on the case, Romer vs. Evans, 94-1039, but it will likely be many months before a ruling is announced.
The outcome in the Colorado case may mark a turning point for the gay-rights movement.
If the high court votes to strike down the Colorado amendment, it will send a powerful signal that official discrimination based on sexual orientation is illegal.
Were the justices to uphold the state measure, however, the ruling would not only sanction anti-gay bias, but would encourage the backers of the Colorado measure to seek similar laws in as many as 10 other states.
Congress has refused to pass a national law making it illegal to discriminate against persons based on their sexual orientation. However, in the past decade, nine states, including California, have enacted such measures, as have at least 130 cities and counties.
Leaders of a group known as "Colorado for Family Values" say adoption agencies, employers and landlords, among others, should be allowed to discriminate against gays and lesbians in some cases.
In 1992, they put on the state ballot a proposed constitutional amendment that said "homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall [not] entitle any person . . . to any minority status, quota preferences, protected status or claim of discrimination."
The voters approved it on a 53%-47% vote. Last year, however, the state supreme court threw it out on the grounds it "fenced out . . . an independently identifiable group" from the political process, a violation of the U.S. Constitution.
During Tuesday's argument, the lawyers differed sharply as to what the amendment meant. Was it about "special rights" or "equal rights?"
Colorado's Solicitor General Timothy Tymkovich argued it bars gays from having "special rights." Certainly, gays will be protected by the police from assaults, just like any other citizen, he said. Neither libraries nor hospitals could single out gays for "arbitrary" and unfair treatment, he added.
This left the justices confused.
"Could an innkeeper say, 'We don't rent to homosexuals" asked Justice John Paul Stevens. "Is that a special right or being treated like everybody else?"
The state attorney did not answer directly, except to say that innkeepers should not have to face "a special liability" for turning down gay patrons.
"If it doesn't cover that, what does it mean?," asked an agitated Breyer at one point.
In February, when the justices agreed to hear the state's appeal in the case, it looked to be a bad omen for gays. Led by Chief Justice William H. Rehnquist, the court tends to defer to the will of the majority, especially when expressed in state law.
But the current court has not spoken on the issue of discrimination based on sexual orientation.
In 1986, the court, on a 5-4 vote, upheld state laws that made "homosexual sodomy" a crime.
Scalia cited that precedent, in Bowers vs. Hardwick, as a basis for upholding Colorado's amendment.
"They [Colorado's voters] can say, 'We're not going to make it criminal, but we are not going to give it special protection either. If the one [state law making sodomy a crime] is constitutional, mustn't this be constitutional too?" he said.
No one answered his question in the courtroom.
In other actions, the court:
* Dismissed an appeal filed by Shannon Faulkner challenging The Citadel's male-only policy, because she has withdrawn from the military college (Faulkner vs. Jones, 95-31). But the justices will review a similar policy at the Virginia Military Institute and will almost surely apply its ruling to The Citadel.
* Reinstated the murder conviction of a Tacoma, Wash., man for the 1981 murder of a laundromat attendant. In a 5-4 ruling, the court rebuked the U.S. 9th Circuit Court of Appeals for engaging in "mere speculation" about evidence that prompted it to reverse the man's conviction in (Wood vs. Bartholomew, 94-1419).