ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Tuesday, May 21, 1996 TAG: 9605210101
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
DATELINE: WASHINGTON
SOURCE: The New York Times
NOTE: Lede
In a significant victory for gay rights, the Supreme Court on Monday struck down a provision of the Colorado constitution that not only nullified existing civil rights protections for homosexuals in the state but also barred the passage of new anti-discrimination laws.
``A state cannot so deem a class of persons a stranger to its laws,'' Justice Anthony Kennedy said in a forceful opinion for a 6-3 majority. He said the Colorado provision, known as Amendment 2, had placed the state's homosexuals ``in a solitary class,'' singling them out in violation of the constitution's equal protection guarantee for a legal disability so sweeping as to be inexplicable on any basis other than ``animus.''
``It is not within our constitutional tradition to enact laws of this sort,'' Kennedy said in an opinion joined by Justices John Paul Stevens, Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
Justice Antonin Scalia filed an equally forceful dissent, accusing the majority of taking sides in ``the culture wars'' through ``an act not of judicial judgment but of political will.'' The process by which Colorado's voters adopted Amendment 2, by 53 percent to 47 percent in 1992, was the ``most democratic of procedures,'' he said.
While no other state has such a provision in its constitution, petitions to place a similar referendum on the November ballot are circulating in Idaho, Oregon and Washington. Voters in Maine defeated a similar proposal last year.
Local governments in Florida, Oregon and Ohio have taken the same approach through local ordinances. A federal appeals court last year upheld a Cincinnati ordinance that stripped homosexuals of civil rights protections in a case that is on appeal to the Supreme Court.
Chief Justice William Rehnquist and Justice Clarence Thomas joined Scalia's dissenting opinion Monday, accusing the majority of ``inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces.'' He said the Colorado amendment was an ``eminently reasonable'' means of preventing the ``piecemeal deterioration of the sexual morality favored by a majority of Coloradans.''
The decision, Romer vs. Evans, does not necessarily portend victory for homosexuals in other cases working their way through the legal system, including the constitutional challenge to the policy on homosexuals in the military or - much further down the road - the question of homosexual marriage. Nor does the ruling provide affirmative rights for gay people; a constitutional shield rather than a sword, it does not require states to offer new civil rights protections.
Nonetheless, the decision was a strong statement, coming from a conservative member of a basically conservative court, that prejudice is not a valid justification for a policy that singles out gay people for special burdens not placed on others.
Kennedy said the Colorado amendment did not meet even the lowest level of scrutiny accorded an official action that is challenged as a violation of the constitutional guarantee of equal protection. Under that test, as Kennedy described it, ``a law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not.''
He said the provision ``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.''
Suzanne Goldberg, a lawyer for the Lambda Legal Defense and Education Fund who worked on the case, said the decision marked ``a historic shift in the court's response to anti-gay discrimination.'' She said the court had rejected ``gay-bashing by referendum'' while making it clear that ``discrimination is discrimination and that anti-gay sentiment is not a justification for discrimination by government.''
LENGTH: Medium: 75 lines ILLUSTRATION: PHOTO: (headshot) Goldberg.by CNB