But even Birch doesn’t think Romer gives gays and lesbians that kind of victory. The Brown decision in 1954, in a case (he didn’t mastermind the decision) masterminded by Marshall, really was a landmark for black Americans. In outlawing school segregation, the court reversed long years of social policy and triggered the modern civil-rights revolution. By contrast, last week’s decision created no new rights for gay Americans and failed to declare them a specially protected group like blacks or women or members of a religious organization. To be sure, Romer has momentous symbolic value. It’s the first time the justices have hinted they may be sympathetic in the future to constitutional claims by gays and lesbians. The only other time the court visited the issue, 10 years ago, the justices were downright antagonistic, ruling in Bowers v. Hardwick that nothing barred the states from making sodomy a crime.
Yet symbolism only goes so far. It doesn’t guarantee housing, medical care or a job-all of which can still be denied homosexuals simply because they’re gay. In virtually every state and municipality across the land that kind of discrimination remains legal and is unaffected by Romer. All the decision says is that a state constitutional amendment can’t prevent the Aspen or Boulder city councils from passing anti-discrimination laws if they so choose. Indeed, the Colorado legislature tomorrow could accomplish the goal of the amendment without any legal problems. How? Pass a law banning discrimination in employment, housing and so forth based on race, religion and other well-accepted classifications-but leave out sexual orientation. Then, explicitly say the law pre-empts all local legislation on discrimination. That way, unlike Amendment 2, sexual orientation is not singled out.
Just two days after the ruling, gay rights activists last week learned how quickly the pendulum can swing. President Clinton-an ally on many gay issues-stunned them by announcing he would sign a bill in Congress, cosponsored by Bob Dole, denying federal recognition of same-sex marriages. (No state yet permits such marriages, but Hawaii may soon. As a practical matter, that legislation could have far wider consequences for the gay movement than Romer. While it’s possible the congressional bill itself is unconstitutional-a violation of the guarantee that each state give “full faith and credit” to the decrees of other states-that’s a court fight years down the road and is probably a loser.
The gay-rights movement has become a potent political and social force in the country, much as civil rights was in the ’60s and women’s rights in the ’70s. From the presidential campaign (box, page 30) to local curriculum wars to adoption proceedings, think here we must elaborate on these issues a bit more what curriculum wars to adoption proceedings, the issues have proliferated. But ambivalence runs deep. A NEWSWEEK Poll last week underscored how far the gay-rights movement has come-and how far it has to go before it can claim victory. Of 779 people polled, 73 percent acknowledged that gays were victims of at least some discrimination, but only 27 percent believe more effort is needed to protect homosexual rights. The majority does not support legislation guaranteeing equal rights for gays-the kind of measures Coloradans are now free to adopt. Eighty-four percent say gays should get equal job opportunities-up from 74 percent two years ago-but only a third support legally sanctioned gay marriage. Unless the courts decide to give gays added constitutional protection, gay activists will have to fight for their cause in every workplace, every school board, every legislature. Without a significant switch in public opinion, they won’t have the electoral votes to win very often, which is why so much effort is being spent in the courts. A survey of the judicial battlegrounds:
Seven cases are pending in the federal courts, all challenging Clinton’s “don’t ask, don’t tell” policy. The theory: soldiers who acknowledge they’re gay should be protected by the First Amendment, since a mere statement doesn’t prove proscribed conduct. Moreover, being dismissed for such a statement may violate the Constitution’s guarantee of “equal protection of the laws” (would a heterosexual be disciplined for saying he was straight?). So far, five trial courts have ruled for the military, two} against. The Supreme Court hasn’t heard any of them, but it’s a good bet to take one within a year or two. The one appeals court to rule-in Richmond, Va.-sided with the government in a case brought by a dismissed naval lieutenant who wrote a letter to his superiors stating, “I am gay.” By a 9-4 vote, the court said the military was entitled to broad discretion over its own affairs. (Judges might not show that kind of deference in civilian matters.) The key case going the other way came out of Brooklyn, N.Y., where District Judge Eugene Nickerson called the policy “draconian.”
Many localities and businesses recognize “domestic partners,” but Hawaii may be on the verge of recognizing gay marriages as a matter of “equal protection” under state constitutional law. In 1993, the state Supreme Court hinted at that result and a trial court has scheduled hearings for the fall. The possibility of such a landmark ruling has led not only to the Defense of Marriage Act now before Congress, but also to proposals in 32 states prohibiting gay marriages and refusing to honor those performed in other jurisdictions (eight bills passed, seven are pending, 17 failed to advance}). Because the Hawaii case involves only state constitutional law, the U.S. Supreme Court can’t review it though it ultimately may decide if other states have to recognize Hawaii marriage
Gay-rights groups are focusing on a case in Georgia. Robin Shahar is a lawyer who was about to go to work for the state. When Attorney General Michael Bowers learned she planned to “marry” another woman, he withdrew the job offer. Shahar sued. A trial judge dismissed the case, but the federal appeals court in Atlanta ordered her claim reinstated unless Bowers could show a “compelling governmental interest” for getting rid of Shahar. That’s legal jargon for “you lose unless you have a damn good reason, which you probably don’t.” If Shahar prevails, the Supreme Court might be tempted to take the case to decide whether gays are entitled to the “compelling interest” test reserved only for a few categories like blacks and religious groups. The Romer case doesn’t “make or break” Shahar’s case, says her lawyer, Ruth Harlow of the ACLU Lesbian and Gay Rights Project. But, she added it’s a good omen.
Maybe so. The majority opinion of Justice Anthony Kennedy-a Reagan appointee-is emotional and grand. He opened with a quote from John Marshall Harlan’s impassioned dissent 100 years ago in Plessy v. Ferguson, the infamous ruling upholding “separate but equal” for blacks and whites. Harlan had written that the Constitution “neither knows nor tolerates classes among citizens.” The problem is that Kennedy’s opinion reads more like a political manifesto than a piece of judicial reasoning. Americans have faith in the Supreme Court because they believe it’s neutral, something more than the gut feelings of nine well-connected lawyers.
A state cannot “deem a class of persons a stranger to its laws,” Kennedy wrote, stressing that Amendment 2’s singling out of gays had no “rational basis” other than “animosity.” But the state argued that there was a better rationale-the liberties of landlords and employers who object to homosexuality, which, after all, has no constitutional protection yet. Kennedy’s response? A perfunctory dismissal. He offered no explanation in terms of constitutional history or theory. And there’s not even a mention of Bowers v. Hardwick, the sodomy case from 1986, which seems inconsistent doctrinally with the Romer decision. That omission gave Justice Antonin Scalia the opening he needed to attack Kennedy. In an especially barbed dissent, Scalia belittled the majority opinion for its “terminal silliness” and for taking sides in a “culture war” best sat out by elitist judges.
The court is all too familiar with avoiding crisp legal reasoning when confronted with a controversial social issue. In Roe v. Wade, its historic ruling on abortion 23 years ago, the majority reached a conclusion that many Americans welcomed (and many others deplored), but it failed to offer a convincing constitutional defense of its stand. Roe’s flawed reasoning wounded the high court’s prestige for a generation. Unfortunately, the legacy of last week’s ruling may be closer to Roe than to the majesty of Brown v. Board of Education.
