Date: Mon, 24 Jun 1996 18:36:14 -0500 From: "Richard D. Mohr" ___________________________________________________________________ Our Supreme Court Victory Against Prejudice by Richard D. Mohr (May 1996) The Supreme Court's May 20th decision declaring unconstitutional Colorado's 1992 Amendment 2 referendum represents an important victory of justice over anti-gay bias. The gay legal community had expected that even in the case of a victory, the Court would not speak in a clear, unified voice, so that any victory would be merely technical. Not so. Justice Kennedy's opinion for the six Justices of the majority could hardly have been stronger in its defense of gays from prejudicial forces. Our win in _Romer v. Evans_ specifically knocked down as a violation of the Equal Protection clause the referendum initiatives that have swept the county in recent years barring legislatures and city councils from passing civil rights protections for gays. But the _Romer_ decision portends major ositive changes in gay law and politics well beyond issues of gays' access to the political process. Indeed if the decision is applied consistently in future cases, virtually all anti-gay discrimination by governments will be struck down. Kennedy's brief but pointed opinion basically holds that governments cannot simply accumulate anti-gay attitudes, hostilities, hatreds, and phobias, cast these dislikes into policy or law, and also claim that these policies and laws are rational. Laws "born of animosity toward the class of persons affected" by them, laws that do nothing more than cobble together and give voice to prejudices, will be struck down. In marked contrast to Supreme Court practice in many recent equal protection cases, the Justices showed a robust willingness to examine the rationales that governments tender as justifications for anti-gay laws to see whether the rationales aren't simply fronts for prejudice. All or nearly all legal burdens on gays appeal directly or indirectly to prejudicial attitudes. Take judicial decisions that have removed custody of kids from their lesbian mothers on the ground that social recriminations directed at the lesbian mother will damage the child. These decisions simply bootstrap policy off of anti-gay prejudice and now appear to be unconstitutional. In 1986, the Supreme Court had upheld anti-gay sodomy laws solely on the ground that they give voice to popular morality, to the anti-gay attitudes of your Average Jo(e). Again such thinking now no longer looks to be good law. The ruling also affects the two biggest battle fronts of the gay cultural wars -- gays in the military and gay marriage. The military defends the legal ban on gays solely on the ground that non-gay soldiers are made up-tht by the presence of gay soldiers. The ban is based on nothing but anti-gay attitudes, and so too looks ripe for judicial scrutiny. In mid-May, President Clinton's press secretary explained that while Clinton is strongly opposed to gay marriage, the President cannot give any reasons for his opposition. Now, strongly held beliefs for which one can offer no reasons or explanations are by definition prejudicial ones. Clinton is typical on the issue of gay marriage: opposition to it is nothing but prejudice on stilts -- and is now judicially suspect. The opinion is important politically as well. It is written by a very conservative, Republican-appointed judge. Prior to his appointment to the Supreme Court, while an appellate judge on the ninth federal circuit, Kennedy heard four gay cases and voted against gays all four times. In one case, he upheld the firing of a gay government worker on the ground that being openly gay was an embarrassment to the government. In both a military case and a case that blended marriage and immigration issues, he wrote vicious and dismissive anti-gay opinions. Clearly conservatives can change and grow. Indeed a "constitutional" majority of the six judges in the _Romer_ opinion are Republican appointees: Kennedy and O'Connor were appointed by Reagan, Souter by Bush, and Stevens by Ford. We have less to fear from conservatives and Republicans than most gay activists assume. In his three-man dissent, Justice Scalia rants about sexual degeneracy and decay, but his rages-those of the Christian Right-are impotent. The gay movement should stop being obsessed by the far Right. In riveting its focus there, it blinds itself to the gay future that is unfolding before us-with a welcome assist from the Supreme Court. -30-