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Targeting gays and lesbians:

Part 2

1996 U.S. Supreme Court ruling (Romer v. Evans)
overturning an anti-gay Amendment 2 in Colorado.

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This essay is a continuation from Part 1

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Election day, 1992-NOV: The Amendment:

At first, gays and lesbians were confident that the Amendment would fail. Tea Schook, led the opposition. She first realized that the Amendment might be approved when she observed a focus group of women from Douglas County who had been assembled to discuss the election. She said:

"That was supposed to be our voter. We watched how one very poisonous woman turned a bunch of people who really didn't have an opinion into some very rabid, queer-hating people. We didn't know how much of a shoo-in hate really was."

Polls in advance of the plebiscite showed that the Amendment would fail. However, polls only reflect the beliefs of a random sampling of all adults. The do not necessarily indicate the beliefs of those adults who are sufficiently motivated to vote.

Years later, hatred and its near cousin, fear, formed the foundation of the battle against same-sex marriage (SSM) by religious and social conservatives. At first, they attempted to raise the fear that same-sex marriage would attack opposite-sex (a.k.a. traditional) marriage. But that argument never did gain much traction because most people could not imagine how a gay or lesbian couple on the next block could damage their own marriage. So the anti-SSM forces switched to raising fear about some lesbian, gay, bisexual, transgender (LGBT) menace attacking people's freedom of religion. The National Organization for Marriage (NOM) made a very effective TV ad with this theme in 2009 that is well worth watching -- an analyzing -- along with some very amusing parodies of the original ad.

On 1992-NOV-3, the voters of Colorado adopted Amendment 2 by a vote of 53.4% to 46.6%. According to the National Legal Foundation, this prevented their state legislatures and all local "governments from granting protected status to a group of individuals based not on an inalienable physical characteristic, but on a chosen lifestyle." This comment demonstrates two very common beliefs among religious conservatives:

bullet That homosexuality is a chosen and changeable behavior; it is what homosexuals do. Religious liberals, gays, lesbians, bisexuals, mental health therapists, human sexuality researchers and others generally believe that homosexuality is actually an immutable, unchosen and unchangeable sexual orientation; it is what homosexuals are.

bullet That groups should only be protected against discrimination based on immutable factors, like sex, race, and skin color, etc. They reject the concept that people should be protected from discrimination based on chosen factors. Since they regard homosexuality as a "chosen lifestyle," they feel that homosexuals should not be a protected class. They overlook the fact that people choose the religion that they wish to follow, and can choose their religion at any time. Yet they demand freedom from religious discrimination. 

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The trial court case:

The National Legal Foundation reported that: "Almost immediately, the homosexual forces struck back, challenging the constitutionality of Amendment 2." The "homosexual forces" actually consisted of a coalition of gays, lesbians, civil liberties groups, and representatives from some Colorado municipalities. They initiated a lawsuit in the District Court for the City and County of Denver. One ironic twist is that Governor Romer had been on record as opposing the Amendment. Yet "he was named in his official capacity as a defendant, together with the Colorado Attorney General and the State of Colorado." 1

The plaintiffs asked the trial court for an immediate temporary injunction that would prevent the Amendment from being activated. The injunction was granted. An appeal was then taken to the state Supreme Court which sustained the injunction. The Supreme Court also determined that the Amendment should be

"subject to strict scrutiny under the Fourteenth Amendment [of the U.S. Constitution] because it infringed the fundamental right of gays and lesbians to participate in the political process." 2

The Fourteenth Amendment guarantees that people will be treated equally under the law. "Under a strict scrutiny standard, a statute is examined using two tests:

bullet First, does the law promote a compelling state interest.

bullet Second, does it do so in the least restrictive means possible." 2

In the trial court, "The State's principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights." 1 The court rejected this argument, and found for the plaintiffs. Later, the U.S. Supreme Court commented: "This reading of the amendment's language is implausible."

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The appeal to the Colorado Supreme Court:

The case was appealed to the Colorado Supreme Court who

"... held that there was a 'fundamental right to participate equally in the political process,' and that Amendment 2 denied homosexuals their equal participation. In order to have their grievances met, homosexuals would have to pass a future initiative that would overturn Amendment 2. This appeal to the voters of the entire state was ruled to be over-burdensome"

since gays, lesbians and bisexuals are such a small minority. 2 The court found that:

"... the amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies."

The court was factually in error here, because the Amendment also withdrew legal protection from bisexuals.

The Colorado Supreme Court found for the plaintiffs.

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The appeal to the U.S. Supreme Court:

Justice Kennedy wrote the majority decision. He rejected the assertion that Amendment 2 simply deprived homosexuals of "special rights" which were not shared by the rest of the population. This was the argument used by Colorado for Family Values during their publicity campaign which lead up to the plebiscite. The Supreme Court ruled that, under Amendment 2:

"Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society."

The court also found:

"that Amendment 2 did discriminate against an identifiable class of people and violated their rights to due process and equal protection under the law. The court held that Amendment 2 was based in 'animus,' or hatred, against a specific group of people." 2

In unusually frank language, the court found that:

"the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.... Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence."

In conclusion, Justice Kennedy commented:

"The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit....We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed."

Amendment 2 was dead.

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Dissenting argument:

Justice Scalia wrote the dissenting argument. He made a number of points :

bullet He noted that in the decision of Bowers v. Hardwick (1986), the Supreme Court had determined -- ten years earlier -- that states had a constitutional right to define homosexual behavior as criminal acts. He implies that the Court had ignored this precedent. Instead, he feels that they treated "opposition to homosexuality is as reprehensible as racial or religious bias." [The Supreme Court later apologized for that decision and reversed it in Lawrence v. Texas]

bullet The U.S. Constitution says nothing about homosexual bias. Thus, it is left up to Congress, state legislatures, and state constitutions to resolve the issue.

bullet Amendment 2 would have prevented "special treatment of homosexuals and nothing more." For example, if the Amendment were in force, retiring homosexual state employees would still be treated in the same way as heterosexual employees in terms of a pension. However, it would prevent the State or any municipality from giving a death benefit to the life partner of a homosexual, when no such benefit were given to a long time roommate of a heterosexual.

bullet "If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct.... [Thus] it is constitutionally permissible for a State to adopt a provision not even disfavoring homosexual conduct, but merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct."

bullet If it is acceptable, under Bowers v. Hardwick, "...to criminalize the [homosexual] conduct, surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct." -- i.e. celibate persons with a homosexual orientation.

bullet "No principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here."

bullet Amendment 2 "...put directly, to all the citizens of the State, the question: Should homosexuality be given special protection? They answered no. The Court today asserts that this most democratic of procedures is unconstitutional. Lacking any cases to establish that facially absurd proposition, it simply asserts that it must be unconstitutional, because it has never happened before."

bullet Justice Scalia drew an analogy between homosexuals and polygamists. Many state constitutions specifically prohibit polygamy.  i.e. polygamists have been singled out for "more severe treatment than merely denial of favored status." He submits that the logic in the majority ruling could also be used to legalize multiple marriages.

bullet He referred to Amendment 2 as "Colorado's reasonable effort to preserve traditional American moral values."

bullet He concludes: "Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent."

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Amendment 2 from the perspective of history:

According to a 2002-SEP article in the Denver Post, there were a number of long-term reactions to the passage of Amendment 2 -- some of which may not have been anticipated at the time:

bullet Colorado became widely referred to as "The Hate State."

bullet The Amendment caused "...a landmark pro-gay Supreme Court ruling voiding the law..." which had nation-wide consequences.

bullet It "prodded so many gays out of the closet they now feel they're winning the social wars."

bullet "...some of Colorado's most conservative political voices now acknowledge that by attacking homosexuality so openly in the 1992 election, they awakened their enemies and weakened their supporters with early victories."

bullet Polls show that almost 90 percent of American adults now favor equal job protections for gays and lesbians. 3

David Smith, spokesperson for the gay-positive Human Rights Campaign said in 2002:

"The effort to achieve equality for gay people is moving forward on a number of fronts. More and more people feel safe and secure coming out and identifying themselves as gay. That coming out of the closet was from Amendment 2 and all the subsequent organizing. Sometimes a defeat leads to victory." 3

Justice Scalia's dissent relied, in part, on the court's earlier determination that states could criminalize homosexual behavior. Just as a convicted murderer cannot claim special privileges, it is unreasonable to allow gays and lesbians to receive preferential treatment. His arguments are significantly weakened by the Supreme Court's decision during 2003-JUN in the Lawrence v. Texas case to overturn Bowers v. Hardwick, and decriminalize same-sex behavior throughout the country. Another development that weakens his argument is the belief by most American adults that granting of protections in employment, accommodation, etc to persons of all sexual orientations does not give special privileges to person of any one sexual orientation.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. The case's syllabus, majority opinion and dissenting opinion are online at: http://supct.law.cornell.edu/
  2. "Roy Romer, Governor of Colorado v. Richard G. Evans..." National Legal Foundation, at: http://www.nlf.net/Romer.html
  3. Michael Booth, "When 'hate' became resolve. State's Amendment 2 led to gay protections," Denver Post, 2002-SEP-29, at: http://www.denverpost.com/
  4. The text of the Supreme Court decision in Romer v. Evan is online at:  http://caselaw.lp.findlaw.com

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Copyright © 2003 to 2012 by Ontario Consultants on Religious Tolerance
Originally written: 2003-JUL-7
Latest update: 2012-FEB-12
Author: B.A. Robinson

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