Gay Rights

GALE NORTON, Colorado Attorney General: Our position has been that Amendment Two preserves the status quo, that it allows the people of Colorado as a whole to make the decision about the issue of sexual orientation, and the Justices, through their questioning, saw that issue as being one of the primary concerns.

SUZANNE GOLDBERG, Lambda Legal Defense: The Constitution forbids the singling out of one group of people for different political rules, and today, through our briefs and argument, we made that clear. Amendment Two is a patent of the Constitution for all of the reasons we've discussed, but it's also absurd. And I think that many of the questions today pointed that out.

MS. FARNSWORTH: Now, legal analysis of today's case. Stuart Taylor, senior writer at "American Lawyer" and "Legal Times," is with Charlayne Hunter-Gault.

MS. HUNTER-GAULT: Stuart, thank you for joining us. What is at issue in this case?

STUART TAYLOR, The American Lawyer: Basically, the state's voters by initiative adopted what almost comes down to a right of the people to discriminate against homosexuals. It's more complicated than that. What had happened is that some of the cities in Colorado, Boulder, Denver, and Aspen, had passed gay rights laws. You can't be fired for being a homosexual. You can't be denied housing for being a homosexual. The voters of the state basically wiped out those laws with this referendum and said, localities cannot adopt gay rights laws, cannot adopt laws banning discrimination against gays, and nor can the state legislature. So if homosexual people want to get relief from discrimination in Colorado, they have to pass a constitutional amendment getting rid of this one, which apparently doesn't seem politically likely.

MS. HUNTER-GAULT: That's Amendment Two, and then something like 57 percent of the voters of Colorado voted for it.

MR. TAYLOR: It was 57/43 after a very heated debate, and a lot of the rhetoric of that debate sort of showed up in a different form in the Supreme Court today.

MS. HUNTER-GAULT: Okay. I want to get to that in a minute, but the state's position basically is–

MR. TAYLOR: The state's position is that this is about the state's right of popular sovereignty; this is about the right of the voters of the states to decide what the state's laws are going to be and how they're going to be formed, at what level they're going to be formed; that if we're going to have a gay rights law, it has to be in the Constitution, and, and we can say in the Constitution there will not be. Also, the state says it's about the rights of religious people, for example, who think homosexuality is immoral, who may be employers, who may be landlords, or whatever, to associate or not to associate with whom they choose. That's how the state characterizes it.

MS. HUNTER-GAULT: And the other side?

MR. TAYLOR: The other side, the gay rights side says this law is unique in American history, this constitutional amendment, because it takes one group, gay people, homosexual people, and it singles them out and says, you don't have quite the same right to participate in the political process that everyone else does. Yes, you can lobby the state legislature, or your city council to pass laws protecting you, but they can't pass such laws. If you want to get a law protecting you, you have to go all the way to the state constitutional amendment process, which is very difficult to do.

MS. HUNTER-GAULT: And what's at stake here exactly?

MR. TAYLOR: What's at stake is the–in the largest sense, there are other states that have attempted–where there have been attempts to pass laws like this, Idaho, I believe, and Oregon, which were narrowly unsuccessful, but they may be tried again. And there are lots of cities all over the country that have gay rights laws, meaning protection against discrimination, and the big issue for the court in this case is whether a state's voters through a constitutional amendment can just basically wipe all that out, or whether they have to deal more discreetly issue by issue with, with issues of discrimination against gay people.

MS. HUNTER-GAULT: And if the ban is upheld?

MR. TAYLOR: If the ban is upheld, then it will be a big setback to the gay rights cause, but the way the issue is formulated in the court is a little peculiar. The gay rights groups aren't coming in and saying, we want you, the Supreme Court, to say that state discrimination against gays should be treated just like racial discrimination; they're not saying that because I think they know the votes aren't there for that. So they're making this more complicated argument that there is a right to equal political participation that homosexuals share with everyone else, and that that's what's implicated here.

MS. HUNTER-GAULT: Why did the Supreme Court take this case? I mean, this is–they had a gay rights case, what, nine years ago?

MR. TAYLOR: Right.

MS. HUNTER-GAULT: Why did they take this one? Did they want to send a message, you think, or–

MR. TAYLOR: I don't think–

MS. HUNTER-GAULT: –correct the other one? And explain those two.

MR. TAYLOR: Well, it's important to understand that of the nine Justices of the Supreme Court, you only need four votes to take a case. So you don't need a majority to take a case. And I can count four votes on this court, the four more liberal members, who sounded today an awful lot like they were all going to vote to strike this down. My guess is they voted to take this case in the hope that they could pull one more vote over and that they could begin to unravel that 1986 precedent, Bowers Vs. Hardwick, which was, as you know, said that laws barring homosexual conduct are constitutional.

MS. HUNTER-GAULT: That was a Georgia case.

MR. TAYLOR: Yes. Now, that case–they're not going to overrule that case in this case, that case is not directly at issue, but I think the more liberal members of the court want to start chipping away at that and want to start weaving some constitutional protections against discrimination against gay people into the U.S. constitutional doctrine.

MS. HUNTER-GAULT: What was it like in the–because you heard lawyers on both sides claiming that the Justices were speaking to issues that would vindicate their position. How did you read what was going on?

MR. TAYLOR: They were both right, depending on which Justice you were listening to. It was very interesting. It was one of the liveliest and most animated arguments I've heard in the court in a while. Eight of the nine Justices jumped in and were very active, and sometimes they were very animated. And they completely took over the argument from the lawyers. The assistant attorney general–the solicitor general, I should say, of Colorado barely got in a word edgewise, because he'd start saying why the amendment should be upheld and Justice Scalia would jump in and say, well, what you really want to say is X, Y, Z, isn't it, and so it was a very lively argument. You could tell very clearly where most of the Justices were going to be in terms of their voting, and as usual, it looks like it's going to come down to the two Justices in the center, Anthony Kennedy and Sandra Day O'Connor, in terms of who will win this case.

MS. HUNTER-GAULT: And they would–so where do you see it coming out?

MR. TAYLOR: Going into the argument I would have thought the state's going to win, the gay rights cause is going to lose. The first two questions out of the box when the state was making its argument were very–rather hostile questions for the state, the first from Justice Kennedy, saying, I've never seen a law like this; it takes one group and fences them out of the usual ability to use the political process and he basically said, he didn't find the state's argument persuasive. Then Justice O'Connor jumped in, and she said, "Does this mean that a public library could refuse to lend books to homosexual people?" She said, "What does this thing mean? I don't understand what this thing means." Now, you can't always read a Justice from a question like that, but it–it seemed clear to me that Justice O'Connor and Justice Kennedy both have some discomfort with this law. Whether it's going to carry them all the way to striking it down as unconstitutional is a closer question.

MS. HUNTER-GAULT: But could this case end up establishing gay people as a class, like blacks, or like–well, blacks are the only protected class–well, I guess, perhaps women.

MR. TAYLOR: Under current doctrine of the equal protection clause, which is the right to equal protection of the laws, blacks are protected, specially protected, women are a little bit less specially protected, illegitimate people, and not just blacks, racial–racial groups basically. It is almost certain that gays will not in this case get into the category of specially protected classes. In fact, the gay advocates in this case very explicitly said to the court that's not what we're asking for. And the reason they did is a strategic judgment. I think they figure that if they come in here and say, okay, now's the case where we want you to make us a suspect classification, they'll lose, whereas, maybe if you get another appointment or two for President Clinton in a few years, maybe that question will come out better for them.

MS. HUNTER-GAULT: Okay. Well, we're out of time, so I didn't get to ask you why the Clinton administration didn't file an amicus brief, but maybe we'll get to that another time. Thank you, Stuart Taylor.

MR. TAYLOR: Sorry, I talked too long.

MS. HUNTER-GAULT: That's all right. Thank you for joining us.

MR. TAYLOR: Thank you.

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