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About Just out. (Portland, OR) 1983-2013 | View Entire Issue (Oct. 20, 1995)
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And now to wait
Amendment 2 has its day in the Supreme Court —
but a verdict could be months away
by Bob Roehr
tion of “policy” within the amendment. Would it
he future of gay men and lesbians in
the United States was argued before
preclude a local police department from determin
ing that there was a problem of “gay-bashing” and
the U.S. Supreme Court on Oct. 10.
implementing a policy to deal with the problem?
The case is Romer v. Evans, regard
Jean E. Dubofsky was the attorney who argued
ing the discriminatory Amendment 2
to Amendment 2. The former Colo
approved by 53 percent of Colorado voters in in opposition
rado Supreme Court judge criticized the amend
and subsequently declared unconstitutional by the
ment for its “unique combination of breadth and
Colorado Supreme Court.
depth.... It is targeting a group of people based on
Amendment 2 prohibits state and local govern
a particular characteristic.”
ments and any of their agencies from granting
“Why isn’t it special protection?” queried Jus
"protected status based on homosexual, lesbian or
tice Antonin Scalia of the local ordinances.
bisexual orientation.” It would invalidate protec
“They are laws of general applicability which
tions for gay men and lesbians enacted by the cities
apply to all ‘sexual orientation’: homosexual, bi
of Denver, Boulder and Aspen.
sexual, heterosexual,” replied
Dubofsky. “I don’t think there is
such a thing as ‘special rights.’ ”
Observers of the court found all
the justices unusually engaged in
the questioning. They clearly rec
ognized the importance of the case.
There was a civility and comfort
level afforded gay men and lesbians
that had not been present in 1986,
when the last major oral argument,
the sodomy case of Bowers v.
Hardwick, was before the court.
One possible indicator of the
verdict might be found in a decision
handed down by the court last fall.
In a 5-4 split, it struck down an
initiative-driven term limitation on
the congressional delegation
adopted by Arkansas voters.
But it is always difficult to pre
dict a decision. The issue is a con
tentious one, and it is likely to take
several months before an opinion
The players soon were spinning
<*> their interpretations of the case to
the media, which packed the marble
front plaza of the court.
“They were asking questions
two different equal protection
Plaintiffs at an Oct. 10 Undo 2 rally
ideas,” said Matt Coles, a partici
pating attorney with the American Civil Liberties
The Colorado court ruled it unconstitutional
Union. “One was asking about excluding people
because it discriminated against gay men and les
from the political process. If the court decides the
bians while erecting a higher barrier (a constitu
on that basis, I think it will put an end to all the
tional amendment) to future relief. In doing so it
antigay initiatives we have seen around the coun
“fenced out” one particular group of people from
the political process.
Coles continued, “The other thing the court
Colorado Solicitor General Timothy M.
talking about was whether there is a rational
Tymkovich defended the amendment before the
basis. Justice Kennedy said it appears you have
U.S. Supreme Court as an expression of popular
singled out gay people because you don’t like
will and the state’s power to set its own policies.
them. If the court bases the decision on that idea,
“Is there any precedent in law?” quickly asked
then I think it will bode very well for us in the
one justice. Tymkovich offered only one citation
which was eviscerated by the justices.
Kevin Tebedo is executive director of Colo
“In all of U.S. history has there been another
rado for Family Values, the group which pushed
group so singled out?” asked Justice Sandra Day
Amendment 2. He warned of dire consequences if
O’Connor. There was no satisfactory answer.
the court strikes down the amendment.
Justice Ruth Bader Ginsburg was troubled by
“I think you are going to see any type of
the prohibition placed upon local government.
behavior that is similar to
“What is the rational basis for people outside of
Aspen telling them what to do?”
mists, kleptomaniacs, compulsive gamblers—that
She noted that local government is the level
chooses to form itself into a political lobby can
most familiar to most Americans and often the first
then claim that they are fenced out of the political
to adopt new policies. She cited the historic ex
ample of women’s suffrage, where many localities
But, he says, “if the court rules in favor of
first extended the vote to women within their
Amendment 2, you are going to see a number of
jurisdiction prior to adoption of the 19th Amend
states, both through their legislatures and through
ment to the U.S. Constitution, which granted women
the initiative process, doing Amendment 2-type
the vote in all elections.
laws in their states.”
Justice Stephen Breyer questioned the defini