A Quick Summary of the Case
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During the 1970's and 1980's, several Colorado communities enacted
ordinances designed to end discrimination based on the sexual preference of
its members. In 1992, a statewide referendum, later known as Amendment 2,
was adopted by popular vote. Amendment 2 did two things: first, it
repealed all of the local ordinances designed to protect the gay
community from discrimination; and second, it barred any other state or
local entity from taking future action that would protect the gay community
from discrimination without first amending the state constitution. Whenever a lawsuit challenges the constitutionality of a law, the court will make some initial and basic assessments. These assessments will often, but not always, determine the outcome of the case. First the court will look at the grounds on which the challenge is brought. Challenges based on the lack of equal protection or due process are common examples. Interfering with a fundamental right, such as the right to participate in the political process, will also bring a law under the court's scrutiny. Second, the court will look at the relationship between the law and the group that is affected by the law. Does the law discriminate between members of this group and society at large? The standard set forth in 1938 by the Supreme Court in United States v. Carolene Products Co. asks "whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those polical processes ordinarily to be relied upon to protect minorities." If the court determines that the group targeted by the challenged law is a "discrete and insular minority," it is unlikely that the law will survive the challenge. In a nutshell, laws that discriminate on the basis of race are almost always held to be unconstitutional. These laws are thrown out. Laws that discriminate on the basis of gender are often held to be unconstitutional. These laws are often thrown out. Laws that discriminate on the basis of how much money one has are not unconstitutional and survive challenges. In other words, the government cannot discriminate against you because of the color of your skin. It probably can't discriminate against you because of your gender. It can, however, discriminate against you because you are poor. Does being gay qualify as a "discreet and insular minority?" So far, the Court has side stepped that question. It applied the same level of scrutiny to Colorado's Amendment 2 as it would to the most ordinary law imaginable. In order for Amendment 2 to be upheld as constitutional, there only needed to be some rational relationship to a legitimate state interest. Amendment 2 failed even this simple test. |
A Few Thoughts Of My Own
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How does all of this affect the gay community? The answer is not
clear cut. In 1986, the United States Supreme Court said that the state
had the right to pass laws that criminalize sex acts between gay couples.
The Court determined that only married couples were entitled to the right
to privacy in their bedroom. This ruling has not been overturned,
however, a majority of states have chosed to voluntarily repeal their
sodomy laws in so far as they affect consenting adults in the privacy of
the home. In 1992 with its decision in Romer v. Evans, the Court waffled. The Court declined to discuss whether the gay community was a minority under Carolene Products and never reached the issue of heightened scrutiny. Instead, it held that even at a minimal level of scrutiny, laws that bar the gay community from the political process are unconstitutional. Thus, it came to a favorable outcome for the gay community without giving us any real protection from future discrimination. Is the gay community making any real progress toward equality? My answer is a resounding "sorta." True, the Supreme Court has gone from upholding sodomy laws to striking down a law that would disenfrachise the gay communitiy politically. We still have a long way to go, though. We are not protected from discrimination in the military in spite of the "Don't ask, don't tell" policy. Same-sex marriage is still a dream. Even if Hawaii opens that door, battles will have to be fought at both the federal and state levels for the marriages to be recognized. This will not be an easy task. Will we ever have real equality? My crystal ball says "Yes." Eventually, we will gain the right to do all those things that any other minority group can do. I don't believe, however, that equality will come quickly or as the result of judicial or legislative action. On the contrary, I believe that the courts and lawmakers will merely reflect what society, in general, accepts. In other words, the more our family, friends and neighbors accept us, the more the courts and laws will protect us. |
Links to More Information on Romer v. Evans
ACLU
GLAAD
The Poundstone Report
Read The Supreme Court's Opinion For Yourself
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