MARCH 8, 1996 GAY PEOPLE'S CHRONICLE 9
SPEAK OUT
What comes after the Amendment 2 ruling-for or against us
by Suzanne B. Goldberg
Sometime in the coming weeks, the United States Supreme Court will announce the fate of Colorado's anti-gay Amendment 2. It is now high time to start talking about how to understand whatever ruling our nation's highest court issues in this pivotal case.
This case, Romer v. Evans, is about an amendment to the Colorado state constitution which a slim majority of Colorado voters passed in 1992. This amendment would bar all branches of state and local government, including public agencies and public schools, from ever prohibiting discrimination against lesbians, gay men and bisexuals. So, for example, if lesbian employees showed that they faced job discrimination or gay students experienced anti-gay harassment in public schools, government officials would be powerless to forbid those harmful actions.
Amendment 2 came to the United States Supreme Court on appeal by Colorado's governor after being struck down as unconstitutional by a Colorado trial court and then the Colorado Supreme Court. Indeed, we— Lambda Legal Defense, the ACLU and a team of Colorado attorneys-have won every round of the lawsuit challenging the antigay measure: Amendment 2 has never taken effect.
The amendment's major flaw is that it changes the rules of the political process by putting a special obstacle in the way of gay people, and only gay people, who seek antidiscrimination protections. It requires gay people to amend the state constitution before any laws and policies forbidding discrimination against lesbians, gay men and bisexuals can be put in place by government, while everyone else can go directly to any government official and lobby for the same sorts of anti-discrimination protections for them-
selves.
By imposing one set of burdensome political rules on gay people while leaving the ordinary political rules in place for all others, Amendment 2 violates the United States Constitution's fundamental guarantee of equal access to the political process for all citizens. In addition, the amendment fails to satisfy even the lowest level of judicial scrutiny-"rational basis review"-because there is no rational justification for stripping away from one group of people all possibility of obtaining protection against discrimination.
Will the Supreme Court agree with our arguments? For now, we have to leave the task of answering that question to those with a crystal ball. What we do know is that a few different outcomes are possible.
Victory is what we expect and what we deserve in this case. The Supreme Court ought to hold that Amendment 2 violates the fundamental right to equal participation. Alternatively, the Court ought to hold that the amendment's ban on all anti-discrimination protections for one group of people lacks a "rational basis." But, in reality, some justices might adopt one theory to invalidate
Amendment 2 and others might advance a different one. In any case, so long as five of the nine justice's agree that Amendment 2 violates the constitutional rights of lesbians, gay men and bisexuals, the amendment would be declared invalid and would never take effect.
The long-term effect of the Court's ruling and how much it will strengthen our challenges to other forms of anti-gay discrimination will depend on exactly what the Court says. For example, depending on its wording, the Court's ruling could have either a significant effect or very little effect on ongoing challenges to the military's "don't ask, don't tell" ban on openly gay servicemembers.
In any event, though, a victory in this case will contribute significantly to securing the basic rights of gay people as well as the civil rights of all people generally. It may also help to end this recent era in which the Court's 1986 validation of Georgia's sodomy law in Bowers v. Hardwick has been cited by courts nationwide to justify anti-gay discrimination in a wide range of areas.
Still, a victory in this case would not mean the end to radical right attacks on our rights. Already numerous anti-gay initiatives are proposed for upcoming ballots around the country. State and local legislatures are full of anti-gay measures aiming to impose restrictions on public education and prohibitions on legal recognition of lesbian and gay families, including equal marriage rights for lesbian and gay couples.
If the Court rules in our favor, we should celebrate that victory as the important and pivotal ruling it would be. At the same time, or at least the next day, we also need to remember that this ruling will not put an end to the "cultural war” in which lesbians and gay men are a prominent target. The challenges to our equality, and indeed, our humanity, will not cease simply because the Supreme Court has spoken in our favor.
On the other hand, the high court could decide that Amendment 2 is constitutional and permit the state of Colorado to set up second-class political access for its lesbian, gay and bisexual citizens. Depending on exactly which arguments the Court adopts in its ruling, the rights of gay people as well as of all other minority groups may become even more vulnerable to the whims of the majority. Judicial endorsement of this form of anti-gay discrimination may be taken by other courts as encouragement to permit antigay discrimination in a wide range of con-
texts.
Of course, we, along with many civil rights organizations that filed briefs with the Court, argued strenuously against this outcome. But should it happen, we must stand together with our allies and recommit ourselves to breathing life back into the American vision of equality and individual liberty.
In promoting Amendment 2, the radical right sought to divide and conquer the civil rights movement by appealing to popular
prejudice and separating out gay people as unworthy of equality. What is clear, however, is that the security of our civil rights individually depends on the security of our civil rights collectively. If any one group of people can be barred from seeking anti-discrimination protection-whether based on sexual orientation, immigration status, or some other characteristic—all of us are vulnerable to the same assault on our basic rights.
There is no reason to believe the effort to dismantle the framework of civil rights protections will stop with us. This gives every reason to work harder, together with other communities, to get out, learn for ourselves
and educate others about the meaning and importance of civil rights. Win or lose, there is no time to waste before becoming part of a national effort to restore meaning to the ideal of equality.
Whether or not we face an onslaught of Amendment 2 clones, we will not go away. Nor will we be silent in our demand for full equality and civil rights. The radical right will see, whatever the outcome of this case, that it is far too late for lesbian, gay, and bisexual America to return to the closet.
Suzanne Goldberg is an attorney with Lambda Legal Defense and Education Fund and co-counsel on Romer v. Evans.
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