Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, October 11, 1995 TAG: 9510110062
SECTION: NATIONAL/INTERNATIONAL PAGE: A3 EDITION: METRO
SOURCE: ASSOCIATED PRESS
DATELINE: WASHINGTON LENGTH: Medium
``I would like to know whether in all of U.S. history there has ever been anything like this,'' Justice Ruth Bader Ginsburg told the state's lawyer, Timothy M. Tymkovich, who asked the high court to reinstate the ban.
Tymkovich did not provide a specific example. But he argued that voters have the right to bar all state and local laws giving homosexuals ``special protection'' from bias in housing, employment and public accommodations.
The case is the most important involving homosexual rights to come before the court in nearly 10 years.
In a 1992 referendum, 53.4 percent of Colorado voters approved the amendment to the state's constitution. But the Colorado Supreme Court invalidated the amendment before it could take effect, saying it denied homosexuals an equal voice.
Jean E. Dubofsky, lawyer for the cities and individuals who challenged the amendment, said it denies homosexuals a political right enjoyed by everyone else - the chance to seek protection from discrimination.
Tymkovich said Colorado voters approved the amendment in response to the success homosexuals had in winning enactment of anti-bias ordinances in Denver, Boulder and Aspen.
But Justice David Souter was skeptical.
``Why is discrimination against one group dealt with under state law differently than discrimination against other groups?'' he asked.
Justice John Paul Stevens added, ``What is the rational basis for the people outside of Aspen telling the people in Aspen they cannot have this nondiscrimination provision?''
Justice Antonin Scalia appeared more sympathetic to Tymkovich's argument that ordinances protecting gays against bias constitute special - not equal - protection.
``They are laws that provide special protection to that particular category of person,'' Scalia said. Other forms of discrimination are not banned, he said, adding that employers can refuse to hire someone ``because you don't like the way they comb their hair.''
Scalia asked Dubofsky why, if states can outlaw homosexual conduct, Colorado cannot bar legal protections for homosexuals.
Chief Justice William Rehnquist, participating in his first argument since undergoing back surgery, asked her whether states could respond to political activism by Mormons by passing a constitutional amendment that says polygamy will always be illegal.
Such an amendment would be permitted, Dubofsky said, because it would not restrict Mormons' participation in the political process in the same way the Colorado amendment affects homosexuals.
The justices' ruling, expected by July, could indicate their views on the continuing validity of their 1986 ruling that let states outlaw consensual homosexual conduct.
by CNB