CERTIORARI TO THE SUPREME COURT OF COLORADO
After various Colorado municipalities passed ordinances banning discrimination
based on sexual orientation in housing, employment, education, public accommodations,
health and welfare services, and other transactions and activities, Colorado
voters adopted by statewide referendum “Amendment 2” to the State
Constitution, which precludes all legislative, executive, or judicial action
at any level of state or local government designed to protect the status of persons
based on their ``homosexual, lesbian or bisexual orientation, conduct, practices
or relationships.'' Respondents, who include aggrieved homosexuals and municipalities,
commenced this litigation in state court against petitioner state parties to
declare Amendment 2 invalid and enjoin its enforcement. The trial court's grant
of a preliminary injunction was sustained by the Colorado Supreme Court, which
held that Amendment 2 was subject to strict scrutiny under the Equal Protection
Clause of the Fourteenth Amendment because it infringed the fundamental right
of gays and lesbians to participate in the political process. On remand, the
trial court found that the Amendment failed to satisfy strict scrutiny. It enjoined
Amendment 2's enforcement, and the State Supreme Court affirmed.
Held: Amendment 2 violates the Equal Protection Clause. Pp. 4-14.
(a) The State's principal argument that Amendment
2 puts gays and lesbians in the same position
as all other persons by denying them special
rights is rejected
as implausible. The extent of the change in legal status effected by this
law is evident from the authoritative construction
of Colorado's Supreme Court—which
establishes that the amendment's immediate effect is to repeal all existing statutes,
regulations, ordinances, and policies of state and local entities barring discrimination
based on sexual orientation, and that its ultimate effect is to prohibit any
governmental entity from adopting similar, or more protective, measures in the
future absent state constitutional amendment—and from a review of the
terms, structure, and operation of the ordinances that would be repealsed
and prohibited
by Amendment 2. Even if, as the State contends, homosexuals can find protection
in laws and policies of general application, Amendment 2 goes well beyond
merely depriving them of special rights. It imposes a broad disability upon
those
persons alone, forbidding them, but no others, to seek specific legal protection
from
injuries caused by discrimination in a wide range of public and private transactions.
Pp. 4-9.
(b) In order to reconcile the Fourteenth Amendment's promise that no person shall
be denied equal protection with the practical reality that most legislation classifies
for one purpose or another, the Court has stated that it will uphold a law that
neither burdens a fundamental right nor targets a suspect class so long as the
legislative classification bears a rational relation to some independent and
legitimate legislative end. See, e.g., Heller v. Doe, 509 U.S. 312, 319-320.
Amendment 2 fails, indeed defies, even this conventional inquiry. First, the
amendment is at once too narrow and too broad, identifying persons by a single
trait and then denying them the possibility of protection across the board. This
disqualification of a class of persons from the right to obtain specific protection
from the law is unprecedented and is itself a denial of equal protection in the
most literal sense. Second, the sheer breadth of Amendment 2, which makes a general
announcement that gays and lesbians shall not have any particular protections
from the law, is so far removed from the reasons offered for it, i.e., respect
for other citizens' freedom of association, particularly landlords or employers
who have personal or religious objections to homosexuality, and the State's interest
in conserving resources to fight discrimination against other groups, that the
amendment cannot be explained by reference to those reasons; the Amendment raises
the inevitable inference that it is born of animosity toward the class that it
affects. Amendment 2 cannot be said to be directed to an identifiable legitimate
purpose or discrete objective. It is a status-based classification of persons
undertaken for its own sake, something the Equal Protection Clause does not permit.
Pp. 9-14.
882 P. 2d 1335, affirmed.
Opinions
KENNEDY, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR,
SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion,
in which REHNQUIST, C. J., and THOMAS, J., joined.
KENNEDY, J., Opinion of the Court
JUSTICE KENNEDY delivered the opinion of the Court.
One century ago, the first Justice Harlan admonished
this Court that the Constitution “neither
knows nor tolerates classes among citizens.” Plessy v.
Ferguson, 163 U.S. 537 , 559 (1896) (dissenting opinion). Unheeded
then,
those words now
are understood
to state a commitment to the law's neutrality where the rights
of persons are at stake. The Equal Protection Clause enforces
this principle
and
today requires
us to hold invalid a provision of Colorado's Constitution.
I.
The enactment challenged in this case is an
amendment to the Constitution of the State
of Colorado, adopted in a 1992 statewide
referendum. The
parties and the state courts refer to it as “Amendment 2,” its designation when
submitted to the voters. The impetus for the amendment and the contentious campaign
that preceded its adoption came in large part from ordinances that had been passed
in various Colorado municipalities. For example, the cities of Aspen and Boulder
and the City and County of Denver each had enacted ordinances which banned discrimination
in many transactions and activities, including housing, employment, education,
public accommodations, and health and welfare services. Denver Rev. Municipal
Code, Art. IV §§28-91 to 28-116 (1991); Aspen Municipal Code §13-98
(1977); Boulder Rev. Code §§12-1-1 to 12-1-11 (1987). What gave rise
to the statewide controversy was the protection the ordinances afforded to persons
discriminated against by reason of their sexual orientation. See Boulder Rev.
Code §12-1-1 (defining “sexual orientation” as “the choice
of sexual partners, i.e., bisexual, homosexual or heterosexual”); Denver
Rev. Municipal Code, Art. IV §28-92 (defining “sexual orientation” as “[t]he
status of an individual as to his or her heterosexuality, homosexuality or bisexuality”).
Amendment 2 repeals these ordinances to the extent they prohibit discrimination
on the basis of “homosexual, lesbian or bisexual orientation, conduct,
practices or relationships.” Colo. Const., Art. II, §30b.
Yet Amendment 2, in explicit terms, does more
than repeal or rescind these provisions. It prohibits
all legislative, executive or judicial
action
at any level of state
or local government designed to protect the named class, a class
we shall refer to as homosexual persons or gays and lesbians.
The amendment
reads: “No
Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither
the State of Colorado, through any of its branches or departments, nor any of
its agencies, political subdivisions, municipalities or school districts, shall
enact, adopt or enforce any statute, regulation, ordinance or policy whereby
homosexual, lesbian or bisexual orientation, conduct, practices or relationships
shall constitute or otherwise be the basis of or entitle any person or class
of persons to have or claim any minority status, quota preferences, protected
status or claim of discrimination. This Section of the Constitution shall be
in all respects self-executing.” Ibid. Soon after Amendment
2 was adopted, this litigation to declare its invalidity and
enjoin its
enforcement
was
commenced in the District Court for the City and County of Denver.
Among the plaintiffs
(respondents here) were homosexual persons, some of them government
employees. They alleged that enforcement of Amendment 2 would
subject them to immediate
and substantial risk of discrimination on the basis of their
sexual orientation. Other plaintiffs (also respondents here)
included
the three municipalities
whose ordinances we have cited and certain other governmental
entities which had acted
earlier to protect homosexuals from discrimination but would
be prevented by Amendment 2 from continuing to do so. Although
Governor
Romer
had been on record
opposing the adoption of Amendment 2, he was named in his official
capacity as a defendant, together with the Colorado Attorney
General and the State
of Colorado.
The trial court granted a preliminary injunction to stay enforcement of Amendment
2, and an appeal was taken to the Supreme Court of Colorado. Sustaining the interim
injunction and remanding the case for further proceedings, the State Supreme
Court held that Amendment 2 was subject to strict scrutiny under the Fourteenth
Amendment because it infringed the fundamental right of gays and lesbians to
participate in the political process. Evans v. Romer, 854 P. 2d 1270 (Colo. 1993)
(Evans I). To reach this conclusion, the state court relied on our voting rights
cases, e.g., Reynolds v. Sims, 377 U.S. 533 (1964); Carrington v. Rash, 380 U.S.
89 (1965); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); Williams
v. Rhodes, 393 U.S. 23 (1968), and on our precedents involving discriminatory
restructuring of governmental decisionmaking, see, e.g., Hunter v. Erickson,
393 U.S. 385 (1969); Reitman v. Mulkey, 387 U.S. 369 (1967); Washington v. Seattle
School Dist. No. 1, 458 U.S. 457 (1982); Gordon v. Lance, 403 U.S. 1 (1971).
On remand, the State advanced various arguments in an effort to show that Amendment
2 was narrowly tailored to serve compelling interests, but the trial court found
none sufficient. It enjoined enforcement of Amendment 2, and the Supreme Court
of Colorado, in a second opinion, affirmed the ruling. Evans v. Romer, 882 P.
2d 1335 (Colo. 1994) (Evans II). We granted certiorari and now affirm the judgment,
but on a rationale different from that adopted by the State Supreme Court.
II.
The State's principal argument in defense of Amendment 2 is that it puts gays
and lesbians in the same position as all other persons. So, the State says, the
measure does no more than deny homosexuals special rights. This reading of the
amendment's language is implausible. We rely not upon our own interpretation
of the amendment but upon the authoritative construction of Colorado's Supreme
Court. The state court, deeming it unnecessary to determine the full extent of
the amendment's reach, found it invalid even on a modest reading of its implications.
The critical discussion of the amendment, set out in Evans I, is as follows:
The immediate objective of Amendment 2 is, at
a minimum, to repeal existing statutes, regulations,
ordinances, and
policies
of state
and local entities
that barred
discrimination based on sexual orientation. See Aspen,
Colo., Mun. Code §13-98
(1977) (prohibiting discrimination in employment, housing and public accommodations
on the basis of sexual orientation); Boulder, Colo., Rev. Code §§12-1-2
to -4 (1987) (same); Denver, Colo., Rev. Mun. Code art. IV, §§28-91
to -116 (1991) (same); Executive Order No. D0035 (December 10, 1990) (prohibiting
employment discrimination for `all state employees, classified and exempt' on
the basis of sexual orientation); Colorado Insurance Code, §10-3-1104,
4A C. R. S. (1992 Supp.) (forbidding health insurance
providers from determining insurability and premiums
based on an
applicant's, a
beneficiary's, or
an insured's sexual orientation); and various provisions
prohibiting discrimination based
on sexual orientation at state colleges.26
26. Metropolitan State College of Denver prohibits college sponsored social clubs
from discriminating in membership on the basis of sexual orientation and Colorado
State University has an antidiscrimination policy which encompasses sexual orientation.
“The 'ultimate effect' of Amendment 2 is to prohibit any governmental entity
from adopting similar, or more protective statutes, regulations, ordinances,
or policies in the future unless the state constitution is first amended to permit
such measures.” 854 P. 2d, at 1284-1285, and
n. 26.
Sweeping and comprehensive is the change in legal status effected by this law.
So much is evident from the ordinances that the Colorado Supreme Court declared
would be void by operation of Amendment 2. Homosexuals, by state decree, are
put in a solitary class with respect to transactions and relations in both the
private and governmental spheres. The amendment withdraws from homosexuals, but
no others, specific legal protection from the injuries caused by discrimination,
and it forbids reinstatement of these laws and policies.
The change that Amendment 2 works in the legal
status of gays and lesbians in the private sphere
is far-reaching,
both on
its own
terms and when
considered in light of the structure and operation
of modern
anti-discrimination laws.
That
structure is well illustrated by contemporary statutes
and ordinances prohibiting discrimination by providers
of public
accommodations. “At common law, innkeepers,
smiths, and others who `made profession of a public employment,' were prohibited
from refusing, without good reason, to serve a customer.” Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. ___, ___ (1995) (slip
op., at 13). The duty was a general one and did not specify protection for particular
groups. The common law rules, however, proved insufficient in many instances,
and it was settled early that the Fourteenth Amendment did not give Congress
a general power to prohibit discrimination in public accommodations, Civil Rights
Cases, 109 U.S. 3 , 25 (1883). In consequence, most States have chosen to counter
discrimination by enacting detailed statutory schemes. See, e.g., S. D. Codified
Laws §§20-13-10, 20-13-22, 20-13-23 (1995); Iowa Code §§216.6-216.8
(1994); Okla. Stat., Tit. 25, §§1302, 1402 (1987); 43 Pa. Cons. Stat. §§953,
955 (Supp. 1995); N. J. Stat. Ann. §§10:5-3, 10:5-4 (West Supp. 1995);
N. H. Rev. Stat. Ann. §354-A:7, 354-A:10, 354-A:17 (1995); Minn. Stat. §363.03
(1991 and Supp. 1995).
Colorado's state and municipal laws typify this
emerging tradition of statutory protection and
follow a consistent
pattern. The
laws first enumerate the
persons or entities subject to a duty not to
discriminate. The list goes
well beyond
the entities covered by the common law. The Boulder
ordinance, for example, has a comprehensive definition
of entities
deemed places
of “public accommodation.” They
include “any place of business engaged in any sales to the general public
and any place that offers services, facilities, privileges, or advantages to
the general public or that receives financial support through solicitation of
the general public or through governmental subsidy of any kind.” Boulder
Rev. Code §12-1-1(j) (1987). The Denver ordinance is of similar breadth,
applying, for example, to hotels, restaurants, hospitals, dental clinics, theaters,
banks, common carriers, travel and insurance agencies, and “shops and stores
dealing with goods or services of any kind,” Denver Rev. Municipal Code,
Art. IV, §28-92.
These statutes and ordinances also depart from
the common law by enumerating the groups or
persons within
their
ambit of
protection. Enumeration
is the essential device used to make the duty
not to discriminate concrete and to
provide guidance
for those who must comply. In following this
approach, Colorado's state and local governments
have not
limited anti-discrimination
laws to
groups
that
have so
far been given the protection of heightened
equal protection scrutiny
under our cases. See, e.g., J. E. B. v. Alabama
ex rel. T. B., 511 U.S. __, __
(1994) (slip
op., at 8) (sex); Lalli v. Lalli, 439 U.S.
259, 265 (1978) (illegitimacy); McLaughlin v.
Florida,
379
U.S. 184,
191-192 (1964) (race); Oyama
v. California, 332 U.S.
633 (1948) (ancestry). Rather, they set forth
an extensive catalogue of traits which cannot
be the
basis for discrimination,
including
age, military
status,
marital status, pregnancy, parenthood, custody
of a minor child, political affiliation, physical
or
mental
disability
of an
individual or of his
or her associates—-and,
in recent times, sexual orientation. Aspen Municipal Code §13-98(a)(1) (1977);
Boulder Rev. Code §§12-1-1 to 12-1-4 (1987); Denver Rev. Municipal
Code, Art. IV, §§28-92 to 28-119 (1991); Colo. Rev. Stat. §§24-34-401
to 24-34-707 (1988 and Supp. 1995).
Amendment 2 bars homosexuals from securing
protection against the injuries that these
public-accommodations
laws address.
That in
itself is a
severe consequence, but there is more. Amendment
2, in addition, nullifies specific
legal protections
for this targeted class in all transactions
in housing, sale of real estate, insurance,
health
and welfare
services, private
education,
and employment.
See,
e.g., Aspen Municipal Code §§13-98(b), (c) (1977); Boulder Rev. Code §§12-1-2,
12-1-3 (1987); Denver Rev. Municipal Code, Art. IV §§28-93 to 28-95, §28-97
(1991).
Not confined to the private sphere, Amendment
2 also operates to repeal and forbid all
laws or
policies
providing specific
protection
for gays
or lesbians
from
discrimination by every level of Colorado
government. The State Supreme Court cited
two examples
of protections in
the governmental
sphere
that are now
rescinded and may not be reintroduced.
The first is Colorado Executive Order D0035 (1990),
which forbids employment discrimination
against “`all state employees,
classified and exempt' on the basis of sexual orientation.” 854 P. 2d,
at 1284. Also repealed, and now forbidden, are “various provisions prohibiting
discrimination based on sexual orientation at state colleges.” Id.,
at 1284, 1285. The repeal of these measures
and the prohibition against their future
reenactment demonstrates
that Amendment
2 has the same
force and effect
in Colorado's
governmental sector as it does elsewhere
and that it applies to policies as
well as ordinary legislation.
Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. See, e.g., Colo. Rev. Stat. §24-4-106(7) (1988) (agency action subject to judicial review under arbitrary and capricious standard); §18-8-405 (making it a criminal offense for a public servant knowingly, arbitrarily or capriciously to refrain from performing a duty imposed on him by law); §10-3-1104(1)(f) (prohibiting “unfair discrimination” in insurance); 4 Colo. Code of Regulations 801-1, Policy 11-1 (1983) (prohibiting discrimination in state employment on grounds of specified traits or “other non-merit factor”). At some point in the systematic administration of these laws, an official must determine whether homosexuality is an arbitrary and thus forbidden basis for decision. Yet a decision to that effect would itself amount to a policy prohibiting discrimination on the basis of homosexuality, and so would appear to be no more valid under Amendment 2 than the specific prohibitions against discrimination the state court held invalid.
If this consequence follows from Amendment 2, as its broad language suggests, it would compound the constitutional difficulties the law creates. The state court did not decide whether the amendment has this effect, however, and neither need we. In the course of rejecting the argument that Amendment 2 is intended to conserve resources to fight discrimination against suspect classes, the Colorado Supreme Court made the limited observation that the amendment is not intended to affect many anti-discrimination laws protecting non-suspect classes, Romer II, 882 P. 2d at 1346, n. 9. In our view that does not resolve the issue. In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.
III.
The Fourteenth Amendment's promise that no person shall be denied the equal protection
of the laws must co-exist with the practical necessity that most legislation
classifies for one purpose or another, with resulting disadvantage to various
groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256,
271- 272 (1979); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).
We have attempted to reconcile the principle with the reality by stating that,
if a law neither burdens a fundamental right nor targets a suspect class, we
will uphold the legislative classification so long as it bears a rational relation
to some legitimate end. See, e.g., Heller v. Doe, 509 U.S. ___, ___ (1993) (slip
op., at 6).
Amendment 2 fails, indeed defies, even this conventional inquiry. First, the
amendment has the peculiar property of imposing a broad and undifferentiated
disability on a single named group, an exceptional and, as we shall explain,
invalid form of legislation. Second, its sheer breadth is so discontinuous with
the reasons offered for it that the amendment seems inexplicable by anything
but animus toward the class that it affects; it lacks a rational relationship
to legitimate state interests.
Taking the first point, even in the ordinary
equal protection case calling for the most
deferential of standards, we
insist on knowing
the relation
between the classification adopted and
the object to be attained. The search for
the
link between classification and objective
gives substance to the Equal Protection
Clause; it
provides
guidance
and discipline
for
the legislature,
which is
entitled to know what sorts of laws it
can pass; and it marks the limits of our
own
authority.
In the ordinary case, a law will be sustained
if it can be said to advance a legitimate
government interest,
even if
the law
seems unwise
or works
to the
disadvantage of a particular group, or
if the rationale
for it seems tenuous. See New Orleans v.
Dukes, 427 U.S.
297
(1976) (tourism benefits
justified
classification favoring pushcart vendors
of certain longevity); Williamson v. Lee
Optical
of Okla., Inc., 348 U.S. 483 (1955) (assumed
health concerns justified law favoring
optometrists over opticians); Railway Express
Agency, Inc. v.
New York, 336 U.S. 106 (1949) (potential
traffic hazards justified exemption of
vehicles advertising
the owner's products from general advertising
ban); Kotch v. Board
of River Port Pilot Comm'rs for Port of
New Orleans,
330 U.S. 552 (1947)
(licensing
scheme
that disfavored persons unrelated to current
river boat pilots justified by possible
efficiency and
safety
benefits
of a
closely knit pilotage
system). The laws challenged
in the cases just cited were narrow enough
in scope and grounded in a
sufficient factual context for us to ascertain
that there existed some relation between
the classification and the purpose it served.
By requiring that the classification bear
a rational relationship
to an independent
and
legitimate legislative
end,
we ensure that classifications are not
drawn for
the purpose of disadvantaging the group
burdened by the
law. See United
States Railroad Retirement
Bd. v. Fritz, 449 U.S. 166 , 181 (1980)
(STEVENS, J., concurring) (“If the adverse impact
on the disfavored class is an apparent aim of the legislature, its impartiality
would be suspect.”).
Amendment 2 confounds this normal process
of judicial review. It is at once too narrow
and
too broad.
It identifies persons
by a
single trait
and then
denies
them protection across the board. The resulting
disqualification of
a class of persons from the right to seek
specific protection from the
law is unprecedented
in our jurisprudence. The absence of precedent
for Amendment 2 is itself instructive; “[d]iscriminations
of an unusual character especially suggest careful consideration to determine
whether they are obnoxious to the constitutional provision.” Louisville
Gas & Elec. Co. v. Coleman, 277 U.S.
32, 37-38 (1928).
It is not within our constitutional tradition
to enact laws of this sort. Central both
to the idea
of the
rule of law
and to
our own
Constitution's guarantee
of equal protection is the principle that
government and each of its parts remain
open on impartial terms to all who seek
its assistance. “`Equal protection
of the laws is not achieved through indiscriminate imposition of inequalities.'” Sweatt
v. Painter, 339 U.S. 629 , 635 (1950) (quoting Shelley v. Kraemer, 334 U.S. 1
, 22 (1948)). Respect for this principle explains why laws singling out a certain
class of citizens for disfavored legal status or general hardships are rare.
A law declaring that in general it shall be more difficult for one group of citizens
than for all others to seek aid from the government is itself a denial of equal
protection of the laws in the most literal sense. “The guaranty of 'equal
protection of the laws is a pledge of the protection of equallaws.'” Skinner
v. Oklahoma ex rel. Williamson, 316 U.S.
535 , 541 (1942) (quoting Yick Wo v. Hopkins,
118
U.S.
356
, 369 (1886)).
Davis v. Beason, 133 U.S. 333 (1890), not
cited by the parties but relied upon by
the dissent,
is not
evidence
that Amendment
2 is within
our constitutional
tradition, and any reliance upon it as
authority for sustaining the amendment
is misplaced.
In Davis, the
Court approved
an Idaho territorial
statute
denying Mormons, polygamists, and advocates
of polygamy the right to vote and to
hold
office because, as the Court construed
the statute, it “simply excludes
from the privilege of voting, or of holding any office of honor, trust or profit,
those who have been convicted of certain offences, and those who advocate a practical
resistance to the laws of the Territory and justify and approve the commission
of crimes forbidden by it.” Id.,
at 347. To the extent Davis held that persons
advocating
a certain
practice may
be denied the
right to
vote, it
is no longer good law. Brandenburg v. Ohio,
395 U.S. 444 (1969) (per curiam). To the
extent it
held that
the groups
designated
in the
statute may be
deprived of the right to vote because of
their status, its ruling could not stand
without
surviving strict scrutiny, a most doubtful
outcome. Dunn v. Blumstein, 405 U.S.
330, 337 (1972); cf. United States v. Brown,
381 U.S.
437 (1965); United States v. Robel, 389
U.S.
258 (1967). To
the extent
Davis held that
a convicted felon
may be denied the right to vote, its holding
is not implicated by our decision and is
unexceptionable. See Richardson
v. Ramirez, 418
U.S.
24 (1974).
A second and related point is that laws
of the kind now before us raise the inevitable
inference
that
the disadvantage
imposed
is born
of animosity
toward
the class
of persons affected. “[I]f the constitutional conception of 'equal protection
of the laws' means anything, it must at the very least mean that a bare . . .
desire to harm a politically unpopular group cannot constitute a legitimate governmental
interest.” Department of Agriculture
v. Moreno, 413 U.S. 528, 534 (1973). Even
laws enacted
for
broad and ambitious
purposes often
can
be explained
by reference to legitimate public policies
which justify the
incidental disadvantages they impose on
certain persons. Amendment 2, however,
in making a general
announcement
that gays and lesbians shall not have any
particular protections from the law, inflicts
on them
immediate, continuing, and
real injuries that outrun
and belie
any legitimate justifications that may
be claimed for it. We conclude that, in
addition
to the
far-reaching deficiencies
of Amendment
2 that
we have
noted, the principles it offends, in another
sense, are conventional and venerable;
a law must bear a rational relationship
to a legitimate governmental purpose, Kadrmas
v. Dickinson
Public
Schools,
487 U.S. 450,
462 (1988), and Amendment
2 does not.
The primary rationale the State offers
for Amendment 2 is respect for other citizens'
freedom of association,
and in
particular
the liberties
of landlords
or employers
who have personal or religious objections
to homosexuality. Colorado also cites its
interest
in conserving
resources to fight discrimination
against
other
groups. The breadth of the Amendment is
so
far removed from these particular justifications
that we find it impossible to credit them.
We
cannot say
that Amendment 2 is directed to any identifiable
legitimate purpose
or discrete
objective. It 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. “[C]lass legislation . . . [is] obnoxious to the prohibitions
of the Fourteenth Amendment . . . .” Civil
Rights Cases, 109 U.S., at 24 .
We must conclude that Amendment 2 classifies homosexuals not to further a proper
legislative end but to make them unequal to everyone else. This Colorado cannot
do. A State cannot so deem a class of persons a stranger to its laws. Amendment
2 violates the Equal Protection Clause, and the judgment of the Supreme Court
of Colorado is affirmed.
It is so ordered.
SCALIA,
J., Dissenting Opinion
JUSTICE
SCALIA, with whom THE CHIEF JUSTICE and JUSTICE
THOMAS join, dissenting.
The Court has mistaken a Kulturkampf for
a fit of spite. The constitutional amendment
before
us here
is not
the manifestation of a “'bare . . . desire to harm'” homosexuals,
ante, at 13, but is rather a modest attempt
by seemingly tolerant Coloradans to preserve
traditional
sexual
mores against the
efforts of a politically
powerful minority to revise those mores
through use of the laws. That objective,
and
the means chosen to achieve it, are not
only unimpeachable under any constitutional
doctrine
hitherto pronounced
(hence the opinion's
heavy
reliance upon principles
of righteousness rather than judicial holdings);
they have been specifically approved by
the Congress of
the United
States and
by this Court.
In holding that homosexuality cannot be
singled out for disfavorable treatment,
the Court
contradicts a decision,
unchallenged
here, pronounced only 10
years ago, see Bowers v. Hardwick, 478
U.S. 186 (1986),
and places the prestige
of this institution behind the proposition
that opposition to homosexuality is
as reprehensible as racial or religious
bias. Whether it is or not is precisely
the cultural
debate that
gave rise
to the
Colorado
constitutional
amendment
(and
to the preferential laws against which
the amendment was directed). Since
the Constitution of the United States says
nothing about this subject, it is left
to be resolved by normal democratic means,
including the democratic adoption of provisions
in state
constitutions. This Court has
no business imposing
upon all Americans the resolution favored
by the elite class from which the Members
of this institution are selected, pronouncing
that “animosity” toward
homosexuality, ante, at 13, is evil. I
vigorously dissent.
I.
Let me first discuss Part II of the Court's
opinion, its longest section, which is
devoted to rejecting
the State's
arguments
that Amendment
2 “puts gays
and lesbians in the same position as all other persons,” and “does
no more than deny homosexuals special rights,” ante, at 4. The Court concludes
that this reading of Amendment 2's language is “implausible” under
the “authoritative construction” given
Amendment 2 by the Supreme Court of Colorado.
Ibid.
In reaching this conclusion, the Court
considers it unnecessary to decide the
validity of
the State's argument
that Amendment
2 does
not deprive
homosexuals of the “protection [afforded by] general laws and policies that prohibit
arbitrary discrimination in governmental and private settings.” Ante,
at 8. I agree that we need not resolve
that dispute, because the Supreme Court
of
Colorado has resolved it for us. In Evans
v. Romer, 882 P. 2d 1335 (1994), the Colorado
court stated:
“[I]t is significant to note that Colorado law currently proscribes discrimination
against persons who are not suspect classes, including discrimination based on
age, §24-34-402(1)(a), 10A C. R. S. (1994 Supp.); marital or family status, §24-34-502(1)(a),
10A C. R. S. (1994 Supp.); veterans' status, §28-3-506, 11B C. R. S. (1989);
and for any legal, off-duty conduct such as smoking tobacco, §24-34-402.5,
10A C. R. S. (1994 Supp.). Of course Amendment
2 is not intended to have any effect on
this legislation, but
seeks only to
prevent the
adoption
of anti-discrimination
laws intended to protect gays, lesbians,
and bisexuals.”
Id., at 1346, n. 9 (emphasis added).
The Court utterly fails to distinguish
this portion of the Colorado court's opinion.
Colorado Rev.
Stat. §24-34-402.5 (Supp. 1995), which this passage authoritatively
declares not to be affected by Amendment 2, was respondents' primary example
of a generally applicable law whose protections would be unavailable to homosexuals
under Amendment 2. See Brief for Respondents Evans et al. 11-12. The clear import
of the Colorado court's conclusion that it is not affected is that “general
laws and policies that prohibit arbitrary discrimination” would continue
to prohibit discrimination on the basis of homosexual conduct as well. This analysis,
which is fully in accord with (indeed, follows inescapably from) the text of
the constitutional provision, lays to rest such horribles, raised in the course
of oral argument, as the prospect that assaults upon homosexuals could not be
prosecuted. The amendment prohibits special treatment of homosexuals, and nothing
more. It would not affect, for example, a requirement of state law that pensions
be paid to all retiring state employees with a certain length of service; homosexual
employees, as well as others, would be entitled to that benefit. But it would
prevent the State or any municipality from making death-benefit payments to the “life
partner” of a homosexual when it
does not make such payments to the long-time
roommate
of a nonhomosexual
employee.
Or again,
it does
not affect
the requirement
of the State's general insurance laws that
customers
be afforded coverage without discrimination
unrelated to anticipated
risk. Thus, homosexuals
could not be
denied coverage, or charged a greater premium,
with respect to auto collision insurance;
but neither the State nor
any
municipality
could
require that
distinctive health insurance risks associated
with homosexuality (if there are any) be
ignored.
Despite all of its hand-wringing about
the potential effect of Amendment 2 on
general
antidiscrimination
laws, the
Court's opinion
ultimately
does not
dispute
all this, but assumes it to be true. See
ante, at 9. The only denial of equal treatment
it
contends homosexuals
have suffered
is this:
They may
not obtain
preferential treatment without amending
the state constitution. That is to say,
the principle
underlying
the Court's
opinion
is that one
who is
accorded
equal
treatment under the laws, but cannot as
readily as
others obtain preferential treatment under
the laws, has been
denied equal
protection of the laws.
If merely stating this alleged “equal protection” violation
does not suffice to refute it, our constitutional
jurisprudence has achieved terminal
silliness.
The central thesis of the Court's reasoning
is that any group is denied equal protection
when,
to obtain
advantage
(or,
presumably, to avoid
disadvantage), it must have recourse to
a more general and hence more difficult
level
of
political decisionmaking than others. The
world
has never heard of such a principle,
which is why the Court's opinion is so
long on emotive utterance and so short
on relevant
legal citation. And it seems to me most
unlikely that any multilevel democracy
can function
under
such a
principle. For whenever
a disadvantage
is imposed,
or conferral of a benefit is prohibited,
at one of the higher levels of democratic
decisionmaking
(i.e.,
by
the
state legislature
rather
than local
government,
or by the people at large in the state
constitution rather than the legislature),
the affected
group
has (under
this theory) been denied
equal protection.
To take the simplest of examples, consider
a state law prohibiting the award of
municipal
contracts to relatives of mayors or city
councilmen. Once such a law is passed,
the group composed
of such relatives
must,
in
order
to get
the
benefit of
city contracts, persuade the state legislature—unlike
all other citizens, who need only persuade
the municipality. It is
ridiculous
to consider this
a denial
of equal protection, which is why the Court's
theory is unheard-of.
The Court might reply that the example
I have given is not a denial of equal protection
only
because
the same “rational basis” (avoidance of corruption)
which renders constitutional the substantive discrimination against relatives
(i.e., the fact that they alone cannot obtain city contracts) also automatically
suffices to sustain what might be called the electoral-procedural discrimination
against them (i.e., the fact that they must go to the state level to get this
changed). This is of course a perfectly reasonable response, and would explain
why “electoral-procedural discrimination” has not hitherto been heard
of: a law that is valid in its substance is automatically valid in its level
of enactment. But the Court cannot afford to make this argument, for as I shall
discuss next, there is no doubt of a rational basis for the substance of the
prohibition at issue here. The Court's entire novel theory rests upon the proposition
that there is something special—something that cannot be justified by normal “rational
basis” analysis—in making a
disadvantaged group (or a nonpreferred
group) resort to
a higher decisionmaking level.
That
proposition finds
no support in law or logic.
II.
I turn next to whether there was a legitimate
rational basis for the substance of the
constitutional amendment—for the prohibition of special protection
for homosexuals. [n1] It is unsurprising that the Court avoids discussion of
this question, since the answer is so obviously yes. The case most relevant to
the issue before us today is not even mentioned in the Court's opinion: In Bowers
v. Hardwick, 478 U.S. 186 (1986), we held that the Constitution does not prohibit
what virtually all States had done from the founding of the Republic until very
recent years—making homosexual conduct a crime. That holding is unassailable,
except by those who think that the Constitution changes to suit current fashions.
But in any event it is a given in the present case: Respondents' briefs did not
urge overruling Bowers, and at oral argument respondents' counsel expressly disavowed
any intent to seek such overruling, Tr. of Oral Arg. 53. If it is constitutionally
permissible for a State to make homosexual conduct criminal, surely it is constitutionally
permissible for a State to enact other laws merely disfavoring homosexual conduct.
(As the Court of Appeals for the District of Columbia Circuit has aptly put it: “If
the Court [in Bowers] was unwilling to object to state laws that criminalize
the behavior that defines the class, it is hardly open . . . to conclude that
state sponsored discrimination against the class is invidious. After all, there
can hardly be more palpable discrimination against a class than making the conduct
that defines the class criminal.” Padula v. Webster, 822 F. 2d 97, 103
(1987).) And a fortiori it is constitutionally permissible for a State to adopt
a provision not even disfavoring homosexual conduct, but merely prohibiting all
levels of state government from bestowing special protections upon homosexual
conduct. Respondents (who, unlike the Court, cannot afford the luxury of ignoring
inconvenient precedent) counter Bowers with the argument that a greater-includes-the-lesser
rationale cannot justify Amendment 2's application to individuals who do not
engage in homosexual acts, but are merely of homosexual “orientation.” Some
courts of appeals have concluded that, with respect to laws of this sort at least,
that is a distinction without a difference. See Equality Foundation of Greater
Cincinnati, Inc. v. Cincinnati, 54 F. 3d 261, 267 (CA6 1995) (“[F]or purposes
of these proceedings, it is virtually impossible to distinguish or separate individuals
of a particular orientation which predisposes them toward a particular sexual
conduct from those who actually engage in that particular type of sexual conduct”);
Steffan v. Perry, 41 F. 3d 677, 689-690 (CADC 1994). The Supreme Court of Colorado
itself appears to be of this view. See 882 P. 2d, at 1349-1350 (“Amendment
2 targets this class of persons based on four characteristics: sexual orientation;
conduct; practices; and relationships. Each characteristic provides a potentially
different way of identifying that class of persons who are gay, lesbian, or bisexual.
These four characteristics are not truly severable from one another because each
provides nothing more than a different way of identifying the same class of persons”)
(emphasis added).
But assuming that, in Amendment 2, a person
of homosexual “orientation” is
someone who does not engage in homosexual conduct but merely has a tendency or
desire to do so, Bowers still suffices to establish a rational basis for the
provision. If it is rational to criminalize the conduct, surely it is rational
to deny special favor and protection to those with a self-avowed tendency or
desire to engage in the conduct. Indeed, where criminal sanctions are not involved,
homosexual “orientation” is an acceptable stand-in for homosexual
conduct. A State “does not violate the Equal Protection Clause merely because
the classifications made by its laws are imperfect,” Dandridge v. Williams,
397 U.S. 471 , 485 (1970). Just as a policy barring the hiring of methadone users
as transit employees does not violate equal protection simply because some methadone
users pose no threat to passenger safety, see New York City Transit Authority
v. Beazer, 440 U.S. 568 (1979), and just as a mandatory retirement age of 50
for police officers does not violate equal protection even though it prematurely
ends the careers of many policemen over 50 who still have the capacity to do
the job, see Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (per
curiam), Amendment 2 is not constitutionally invalid simply because it could
have been drawn more precisely so as to withdraw special antidiscrimination protections
only from those of homosexual “orientation” who actually engage in
homosexual conduct. As JUSTICE KENNEDY wrote, when he was on the Court of Appeals,
in a case involving discharge of homosexuals from the Navy: “Nearly any
statute which classifies people may be irrational as applied in particular cases.
Discharge of the particular plaintiffs before us would be rational, under minimal
scrutiny, not because their particular cases present the dangers which justify
Navy policy, but instead because the general policy of discharging all homosexuals
is rational.” Beller v. Middendorf,
632 F. 2d 788, 808-809, n. 20 (CA9 1980)
(citation
omitted).
See also
Ben-Shalom v.
Marsh, 881
F. 2d
454, 464
(CA7 1989), cert. denied, 494 U.S. 1004
(1990).
Moreover, even if the provision regarding
homosexual “orientation” were
invalid, respondents' challenge to Amendment 2—which is a facial challenge—must
fail. “A facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully, since the challenger must establish
that no set of circumstances exists under which the Act would be valid.” United
States v. Salerno, 481 U.S. 739 , 745 (1987). It would not be enough for respondents
to establish (if they could) that Amendment 2 is unconstitutional as applied
to those of homosexual “orientation”; since, under Bowers, Amendment
2 is unquestionably constitutional as applied to those who engage in homosexual
conduct, the facial challenge cannot succeed. Some individuals of homosexual “orientation” who
do not engage in homosexual acts might successfully bring an as-applied challenge
to Amendment 2, but so far as the record indicates, none of the respondents is
such a person. See App. 4-5 (complaint describing each of the individual respondents
as either “a gay man” or “a lesbian”).
[n2]
III.
The foregoing suffices to establish what the Court's failure to cite any case
remotely in point would lead one to suspect: No principle set forth in the Constitution,
nor even any imagined by this Court in the past 200 years, prohibits what Colorado
has done here. But the case for Colorado is much stronger than that. What it
has done is not only unprohibited, but eminently reasonable, with close, congressionally
approved precedent in earlier constitutional practice.
First, as to its eminent reasonableness.
The Court's opinion contains grim, disapproving
hints that
Coloradans have
been guilty of “animus” or “animosity” toward
homosexuality, as though that has been established as Unamerican. Of course it
is our moral heritage that one should not hate any human being or class of human
beings. But I had thought that one could consider certain conduct reprehensible—murder,
for example, or polygamy, or cruelty to animals—and could exhibit even “animus” toward
such conduct. Surely that is the only sort of “animus” at issue here:
moral disapproval of homosexual conduct, the same sort of moral disapproval that
produced the centuries-old criminal laws that we held constitutional in Bowers.
The Colorado amendment does not, to speak entirely precisely, prohibit giving
favored status to people who are homosexuals; they can be favored for many reasons—for
example, because they are senior citizens or members of racial minorities. But
it prohibits giving them favored status because of their homosexual conduct—that
is, it prohibits favored status for homosexuality.
But though Coloradans are, as I say, entitled
to be hostile toward homosexual conduct,
the fact
is that
the degree
of hostility reflected by Amendment
2 is the smallest conceivable. The Court's
portrayal of Coloradans as a society fallen
victim to pointless, hate-filled “gay-bashing” is so false as to
be comical. Colorado not only is one of the 25 States that have repealed their
antisodomy laws, but was among the first to do so. See 1971 Colo. Sess. Laws,
ch. 121, §1. But the society that eliminates criminal punishment for homosexual
acts does not necessarily abandon the view that homosexuality is morally wrong
and socially harmful; often, abolition simply reflects the view that enforcement
of such criminal laws involves unseemly intrusion into the intimate lives of
citizens. Cf. Brief for Lambda Legal Defense and Education Fund, Inc., et al.
as Amici Curiae in Bowers v. Hardwick, O. T. 1985, No. 85-140, p. 25, n. 21 (antisodomy
statutes are “unenforceable by any but the most offensive snooping and
wasteful allocation of law enforcement resources”); Kadish, The Crisis
of Overcriminalization, 374 The Annals of the American Academy of Political and
Social Science 157, 161 (1967) (“To obtain evidence [in sodomy cases],
police are obliged to resort to behavior which tends to degrade and demean both
themselves personally and law enforcement as an institution”).
There is a problem, however, which arises
when criminal sanction of homosexuality
is eliminated
but moral
and social disapprobation
of
homosexuality is
meant to be retained. The Court cannot
be unaware of that problem; it is evident
in many
cities of the country, and occasionally
bubbles
to the surface of the news, in heated political
disputes
over
such matters
as the introduction
into
local schools
of books teaching that homosexuality is
an optional and fully acceptable “alternate
life style.” The problem (a problem, that is, for those who wish to retain
social disapprobation of homosexuality) is that, because those who engage in
homosexual conduct tend to reside in disproportionate numbers in certain communities,
see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit
of Prof. James Hunter), and of course care about homosexual-rights issues much
more ardently than the public at large, they possess political power much greater
than their numbers, both locally and statewide. Quite understandably, they devote
this political power to achieving not merely a grudging social toleration, but
full social acceptance, of homosexuality. See, e.g., Jacobs, The Rhetorical Construction
of Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev. 723,
724 (1993) (“[T]he task of gay rights proponents is to move the center
of public discourse along a continuum from the rhetoric of disapprobation, to
rhetoric of tolerance, and finally to affirmation”).
By the time Coloradans were asked to vote
on Amendment 2, their exposure to homosexuals'
quest for social
endorsement was not
limited to newspaper
accounts
of happenings
in places such as New York, Los Angeles,
San
Francisco, and
Key West. Three Colorado cities— Aspen, Boulder, and Denver—had enacted ordinances that listed “sexual
orientation” as an impermissible ground for discrimination, equating the
moral disapproval of homosexual conduct with racial and religious bigotry. See
Aspen Municipal Code §13-98 (1977); Boulder Rev. Municipal Code §§12-1-1
to 12-1-11 (1987); Denver Rev. Municipal Code, Art. IV §§28-91 to 28-116
(1991). The phenomenon had even appeared statewide: the Governor of Colorado
had signed an executive order pronouncing that “in the State of Colorado
we recognize the diversity in our pluralistic society and strive to bring an
end to discrimination in any form,” and directing state agency-heads to “ensure
non-discrimination” in hiring and promotion based on, among other things, “sexual
orientation.” Executive Order No.
D0035 (Dec. 10, 1990). I do not mean to
be critical
of these
legislative successes;
homosexuals are as
entitled
to use the legal system for reinforcement
of their moral
sentiments as are the rest
of society. But they are subject to being
countered by lawful, democratic
countermeasures as well.
That is where Amendment 2 came in. It sought to counter both the geographic concentration
and the disproportionate political power of homosexuals by (1) resolving the
controversy at the statewide level, and (2) making the election a single-issue
contest for both sides. It put directly, to all the citizens of the State, the
question: Should homosexuality be given special protection? They answered no.
The Court today asserts that this most democratic of procedures is unconstitutional.
Lacking any cases to establish that facially absurd proposition, it simply asserts
that it must be unconstitutional, because it has never happened before.
“[Amendment 2] identifies persons by a single trait and then denies them
protection across the board. The resulting
disqualification of a class of persons from the right to seek specific protection
from the law is unprecedented
in
our jurisprudence. The absence of precedent
for Amendment 2 is itself instructive . . . .
“It is not within our constitutional tradition to enact laws of this sort.
Central both to the idea of the rule of
law and to our own Constitution's guarantee of equal protection is the principle
that
government and
each of its parts
remain open on impartial terms to all who
seek
its assistance.”
Ante, at 11-12. As I have noted above, this is proved
false every time a state law prohibiting
or disfavoring certain
conduct is
passed, because
such
a
law prevents the adversely affected group—whether drug addicts, or smokers,
or gun owners, or motorcyclists—from changing the policy thus established
in “each of [the] parts” of
the State. What the Court says is even
demonstrably
false
at the constitutional
level.
The Eighteenth
Amendment
to
the Federal Constitution, for example,
deprived those who drank alcohol not only
of the power to alter the policy of prohibition
locally or
through state legislation, but even of
the
power to alter it through
state constitutional
amendment or
federal legislation. The Establishment
Clause of the First Amendment prevents
theocrats
from having their way by converting their
fellow citizens at the local, state, or
federal statutory
level; as
does the Republican
Form of Government
Clause
prevent monarchists.
But there is a much closer analogy, one
that involves precisely the effort by the
majority
of citizens
to preserve its
view of sexual
morality statewide,
against
the efforts of a geographically concentrated
and politically powerful minority to undermine
it.
The constitutions
of the States of Arizona,
Idaho, New
Mexico, Oklahoma, and Utah to this day
contain provisions stating that polygamy
is “forever
prohibited.” See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, §4;
N. M. Const., Art. XXI, §1; Okla. Const., Art. I, §2; Utah Const.,
Art. III, §1. Polygamists, and those who have a polygamous “orientation,” have
been “singled out” by these provisions for much more severe treatment
than merely denial of favored status; and that treatment can only be changed
by achieving amendment of the state constitutions. The Court's disposition today
suggests that these provisions are unconstitutional, and that polygamy must be
permitted in these States on a state-legislated, or perhaps even local-option,
basis—unless, of course, polygamists
for some reason have fewer constitutional
rights than homosexuals.
The United States Congress, by the way,
required the inclusion of these antipolygamy
provisions
in the constitutions
of
Arizona, New
Mexico,
Oklahoma, and Utah,
as a condition of their admission to statehood.
See Arizona Enabling Act, 36 Stat.
569; New Mexico Enabling Act, 36 Stat.
558; Oklahoma Enabling Act, 34 Stat. 269;
Utah
Enabling Act,
28 Stat. 108. (For
Arizona, New
Mexico, and Utah,
moreover, the Enabling Acts required that
the antipolygamy provisions be “irrevocable
without the consent of the United States and the people of said State”—so
that not only were “each of [the] parts” of these States not “open
on impartial terms” to polygamists, but even the States as a whole were
not; polygamists would have to persuade the whole country to their way of thinking.)
Idaho adopted the constitutional provision on its own, but the 51st Congress,
which admitted Idaho into the Union, found its constitution to be “republican
in form and . . . in conformity with the Constitution of the United States.” Act
of Admission of Idaho, 26 Stat. 215 (emphasis added). Thus, this “singling
out” of the sexual practices of a single group for statewide, democratic
vote—so utterly alien to our constitutional system, the Court would have
us believe—has not only happened,
but has received the explicit approval
of the
United States Congress.
I cannot say that this Court has explicitly approved any of these state constitutional
provisions; but it has approved a territorial statutory provision that went even
further, depriving polygamists of the ability even to achieve a constitutional
amendment, by depriving them of the power to vote. In Davis v. Beason, 133 U.S.
333 (1890), Justice Field wrote for a unanimous Court:
“In our judgment, §501 of the Revised Statutes of Idaho Territory,
which provides that 'no person . . . who
is a bigamist or polygamist or who teaches, advises, counsels, or encourages
any
person
or persons
to become bigamists
or
polygamists, or to commit any other crime
defined by law, or
to enter into
what is known as plural or celestial marriage,
or
who is a member of any order, organization
or association which teaches, advises,
counsels, or encourages its members or devotees or any other persons to commit
the crime of
bigamy or polygamy,
or any
other crime defined by law . . . is permitted
to vote at any election, or to hold any position or office of honor, trust,
or profit within this
Territory,'
is not open to any constitutional or legal
objection.”
Id., at 346-347 (emphasis added).
To the extent, if any, that this opinion
permits the imposition of adverse consequences
upon
mere abstract
advocacy of
polygamy, it
has of course
been overruled by later
cases. See Brandenburg v. Ohio, 395 U.S.
444 (1969) (per curiam). But the proposition
that
polygamy
can be criminalized,
and
those engaging
in that
crime deprived
of the vote, remains good law. See Richardson
v. Ramirez, 418 U.S. 24, 53 (1974). Beason
rejected the argument
that “such discrimination is a denial of the
equal protection of the laws.” Brief for Appellant in Davis v. Beason,
O. T. 1889, No. 1261, p. 41. Among the Justices joining in that rejection were
the two whose views in other cases the Court today treats as equal-protection
lodestars—Justice Harlan, who was to proclaim in Plessy v. Ferguson, 163
U.S. 537 , 559 (1896) (dissenting opinion), that the Constitution “neither
knows nor tolerates classes among citizens,” quoted ante, at 1, and Justice
Bradley, who had earlier declared that “class legislation . . . [is] obnoxious
to the prohibitions of the Fourteenth Amendment,” Civil
Rights Cases, 109 U.S. 3 , 24 (1883), quoted
ante, at 14. [n3]
This Court cited Beason with approval as
recently as 1993, in an opinion authored
by the same
Justice who
writes for
the Court
today.
That opinion
said: “[A]dverse
impact will not always lead to a finding of impermissible targeting. For example,
a social harm may have been a legitimate concern of government for reasons quite
apart from discrimination. . . . See, e.g., . . . Davis v. Beason, 133 U.S. 333
(1890).” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 , 535
(1993). It remains to be explained how §501 of the Idaho Revised Statutes
was not an “impermissible targeting” of polygamists, but (the much
more mild) Amendment 2 is an “impermissible targeting” of homosexuals.
Has the Court concluded that the perceived social harm of polygamy is a “legitimate
concern of government,” and the perceived
social harm of homosexuality is not?
IV.
I strongly suspect that the answer to the
last question is yes, which leads me to
the last
point I wish to
make: The
Court today,
announcing
that Amendment
2 “defies . . . conventional [constitutional] inquiry,” ante, at
10, and “confounds [the] normal process of judicial review,” ante,
at 11, employs a constitutional theory heretofore unknown to frustrate Colorado's
reasonable effort to preserve traditional American moral values. The Court's
stern disapproval of “animosity” towards
homosexuality might be compared with what
an earlier Court (including
the revered Justices
Harlan and Bradley)
said in Murphy v. Ramsey, 114 U.S. 15 (1885),
rejecting a constitutional challenge
to a United States statute that denied
the franchise in federal territories to
those
who engaged in
polygamous cohabitation:
“[C]ertainly no legislation can be supposed more wholesome and necessary
in the founding of a free, self-governing
commonwealth, fit to take rank as one of the co-ordinate States of the Union,
than
that which seeks to
establish
it
on the basis of the idea of the family,
as consisting in and springing from the union for life of one man and one woman
in
the holy estate
of
matrimony; the
sure foundation of all that is stable and
noble in our civilization; the best
guaranty of that reverent morality which
is the source of all
beneficent progress in social and political improvement.”
Id., at 45. I would not myself indulge in such official praise for heterosexual
monogamy, because I think it no business of the courts (as opposed to the political
branches) to take sides in this culture war.
But the Court today has done so, not only
by inventing a novel and extravagant constitutional
doctrine
to take the
victory
away from
traditional forces,
but even by verbally disparaging as bigotry
adherence to traditional attitudes. To
suggest, for example,
that this
constitutional
amendment springs from
nothing
more than “'a bare . . . desire to harm a politically unpopular group,'” ante,
at 13, quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973),
is nothing short of insulting. (It is also nothing short of preposterous to call “politically
unpopular” a group which enjoys enormous
influence in American media and politics,
and which, as the
trial court here noted,
though composing
no more
than 4% of the population had the support
of 46% of the voters on Amendment 2, see
App.
to Pet.
for Cert.
C-18.)
When the Court takes sides in the culture
wars, it tends to be with the knights rather
than
the villeins—and more specifically with the Templars, reflecting
the views and values of the lawyer class from which the Court's Members are drawn.
How that class feels about homosexuality will be evident to anyone who wishes
to interview job applicants at virtually any of the Nation's law schools. The
interviewer may refuse to offer a job because the applicant is a Republican;
because he is an adulterer; because he went to the wrong prep school or belongs
to the wrong country club; because he eats snails; because he is a womanizer;
because she wears real-animal fur; or even because he hates the Chicago Cubs.
But if the interviewer should wish not to be an associate or partner of an applicant
because he disapproves of the applicant's homosexuality, then he will have violated
the pledge which the Association of American Law Schools requires all its member-schools
to exact from job interviewers: “assurance of the employer's willingness” to
hire homosexuals. Bylaws of the Association of American Law Schools, Inc. §6-4(b);
Executive Committee Regulations of the Association of American Law Schools §6.19,
in 1995 Handbook, Association of American Law Schools. This law-school view of
what “prejudices” must be stamped out may be contrasted with the
more plebeian attitudes that apparently still prevail in the United States Congress,
which has been unresponsive to repeated attempts to extend to homosexuals the
protections of federal civil rights laws, see, e.g., Employment Non-Discrimination
Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments of
1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which took the pains to exclude
them specifically from the Americans With Disabilities Act of 1990, see 42 U.S.C. §12211(a)
(1988 ed., Supp. V).
* * *
Today's opinion has no foundation in American constitutional law, and barely
pretends to. The people of Colorado have adopted an entirely reasonable provision
which does not even disfavor homosexuals in any substantive sense, but merely
denies them preferential treatment. Amendment 2 is designed to prevent piecemeal
deterioration of the sexual morality favored by a majority of Coloradans, and
is not only an appropriate means to that legitimate end, but a means that Americans
have employed before. Striking it down is an act, not of judicial judgment, but
of political will.
I dissent.
1. The Court evidently agrees that “rational basis”—the normal
test for compliance with the Equal Protection Clause—is
the governing standard.
The trial court rejected respondents' argument
that homosexuals constitute a “suspect” or “quasi-suspect” class,
and respondents elected not to appeal that ruling to the Supreme Court of Colorado.
See Evans v. Romer, 882 P. 2d 1335, 1341, n. 3 (1994). And the Court implicitly
rejects the Supreme Court of Colorado's holding, see Evans v. Romer, 854 P. 2d
1270, 1282 (1993), that Amendment 2 infringes upon a “fundamental right” of “independently
identifiable class[es]” to “participate equally in the political
process.” Ante, at 4.
2. The Supreme Court of Colorado stated: “We hold that the portions of Amendment 2 that would remain if only the provision concerning sexual orientation were stricken are not autonomous and thus, not severable,” 882 P. 2d, at 1349. That statement was premised, however, on the proposition that “[the] four characteristics [described in the Amendment—sexual orientation, conduct, practices, and relationships] are not truly severable from one another because each provides nothing more than a different way of identifying the same class of persons.” Id., at 1349-1350 (emphasis added). As I have discussed above, if that premise is true—if the entire class affected by the Amendment takes part in homosexual conduct, practices and relationships—Bowers alone suffices to answer all constitutional objections. Separate consideration of persons of homosexual “orientation” is necessary only if one believes (as the Supreme Court of Colorado did not) that that is a distinct class.
3. The Court labors mightily to get around
Beason, see ante, at 12-13, but cannot
escape the central
fact that
this Court
found
the statute
at issue—which
went much further than Amendment 2, denying polygamists not merely special treatment
but the right to vote—“not open to any constitutional or legal objection,” rejecting
the appellant's argument (much like the argument of respondents today) that the
statute impermissibly “single[d] him out,” Brief for Appellant in
Davis v. Beason, O. T. 1889, No. 1261, p. 41. The Court adopts my conclusions
that (a) insofar as Beason permits the imposition of adverse consequences based
upon mere advocacy, it has been overruled by subsequent cases, and (b) insofar
as Beason holds that convicted felons may be denied the right to vote, it remains
good law. To these conclusions, it adds something new: the claim that “[t]o
the extent [Beason] held that the groups designated in the statute may be deprived
of the right to vote because of their status, its ruling could not stand without
surviving strict scrutiny, a most doubtful outcome.” Ante, at 12-13. But
if that is so, it is only because we have declared the right to vote to be a “fundamental
political right,” see, e.g., Dunn
v. Blumstein, 405 U.S. 330, 336 (1972),
deprivation
of which
triggers strict
scrutiny.
Amendment 2, of course, does not deny the
fundamental right to vote, and the Court
rejects the Colorado
court's view
that there
exists
a fundamental right
to participate in the political process.
Strict scrutiny is thus not in
play here. See ante, at 10. Finally, the
Court's suggestion that §501 of the
Revised Statutes of Idaho, and Amendment 2, deny rights on account of “status” (rather
than conduct) opens up a broader debate
involving the significance of Bowers to
this case,
a debate which
the Court is otherwise
unwilling to join,
see supra, at 6-9.
