POLITICS OCTOBER 23, 1995
Two years ago in a Denver courtroom, when we last encountered the anti-gay rights case Evans v. Romer, Professors Martha Nussbaum of Brown and Robert George of Princeton were wrangling about the proper translation of tolmema, Plato's adjective for homosexuality. Nussbaum said "deed of daring"; George preferred "abomination." (See "Sodom and Demurrer," TNR, November 29, 1993.) In its journey up to the Supreme Court, however, the case has been transformed from one about the definition of homosexuality to one about constitutional limitations on plebiscitary democracy. State and federal courts in Colorado and Ohio, in striking down anti-gay rights initiatives, have come close to suggesting that direct democracy is itself unconstitutional. If the Supreme Court agrees, then the wave of ballot initiatives sweeping across the Western states, including the anti- affirmative action referendums that are pending in California and Washington, could be stopped cold.
But the Supreme Court is unlikely to agree. The notion that anti-gay rights initiatives violate the "fundamental right to political participation" of gay voters, as the Colorado court held, is nebulous and unconvincing, and the justices will almost certainly reject it. There are more modest arguments for striking down the initiative--it's irrational, perhaps, for Colorado to deny civil rights protections to homosexuals that are extended to virtually every other group of citizens, including married people, veterans and smokers. But none of these arguments is entirely persuasive. I'd gladly vote against the anti-gay rights initiative as a citizen of Colorado, but that's not the same as saying it's unconstitutional. Indeed, if the initiative is construed narrowly rather than broadly, the Court probably should, and probably will, uphold it.
In November, 1992, 53 percent of the voters of Colorado ratified Amendment 2 to the Colorado Constitution: 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.
What, exactly, does this tortuous sentence mean? If you read it as expansively as possible, the last phrase of the Amendment, prohibiting " claims of discrimination" on the basis of homosexual orientation, could sweep away all efforts by state government to protect gay people from private and public discrimination, including police regulations requiring equal enforcement of the criminal laws; protections against arbitrary dismissal of state employees; state university non-discrimination policies; state regulations of the insurance industry, and so on. But, read as narrowly as possible, the Amendment might have few practical effects because homosexuals may already be protected by generic laws forbidding discrimination on the basis of factors unrelated to the task at hand. Amendment 2, on this reading, may be nothing more than a refusal by the state to affirm the legitimacy of homosexuality as such. Which of these two readings is correct is the critical- -and almost impenetrable--issue in the case.
"Equal rights, not special rights," proclaimed Amendment 2 bumper stickers; but the Romer case shows that it's not easy to distinguish equal rights from special rights in an age when anti-discrimination laws are the norm rather than the exception. In his new book, Virtually Normal, my colleague Andrew Sullivan argues that "all public (as opposed to private) discrimination against homosexuals be ended." Sullivan would ban "all proactive discrimination by the state against homosexuals," including discrimination by police officers, government agencies, the military and marriage bureaus, but he opposes civil rights protections for gays in the "private sphere," and he would permit private employers and landlords to discriminate against or in favor of homosexuals as they pleased.
Sullivan's classically liberal distinction between public and private discrimination is conceptually pure; but, as the messy reality of Colorado shows, it has been largely overtaken by the rights revolutions of the post- New Deal administrative state. If we lived in John Stuart Mill's England, where private employers were free to fire their employees at will, it would be easy to applaud Amendment 2 for ensuring that homosexuals have the same protections every other group has against being fired without good reason-- namely, no protection at all.
But Colorado in 1995 looks nothing like Colorado in 1895. The private sector is now so pervasively regulated that private employers and landlords are treated more like public utilities than like mom-and-pop proprietors; and the libertarian ideal of freedom of contract has been largely repudiated. In 1990, after heavy lobbying by the tobacco industry, Colorado adopted a " Smoker's Bill of Rights" which prohibits private employers from discriminating against their employees on the basis of any legal off-duty conduct. Sodomy, like smoking, is legal in Colorado. And in many cases, homosexuality is simply defined as the propensity or habit of practicing sodomy. In other words, the civil rights laws of Colorado today appear to protect all citizens from irrational public and private discrimination. If protection against arbitrary discrimination is indeed the baseline of equal rights, rather than special rights, in Colorado (and this is open to question) then singling out homosexuals as uniquely unprotected by the web of protections that everyone else enjoys might plausibly be seen as a denial of the equal protection of the laws.
The proliferation of protected groups in Colorado also makes it harder to argue that anti-discrimination protections are a kind of special rights rather than equal rights. Private employers in Colorado are generally forbidden from discriminating not only on the basis of race, sex and religion, but also on the basis of disability, marital status, political affiliation and veteran status, as well as, in some cities, sexual orientation. As Judge Richard Posner asks in Sex and Reason:
Is there any reason to exclude homosexuals from a protected category that already includes not only racial, religious, and ethnic groups but also women, the physically and mentally handicapped, all workers aged 40 and older, and, in some cases, even young healthy male wasps? Is there less, or less harmful, or less irrational discrimination against homosexuals than against the members of any of these other groups? The answer is no.
Nevertheless, striking down Amendment 2 as entirely irrational would be a very aggressive position for a judge to take: few citizens really believe that classifications based on sexual orientation are, in all circumstances, entirely unreasonable. In the spirit of judicial restraint, therefore, it might be possible to read the Amendment in a way that minimizes the constitutional difficulties, rather than exaggerating them. At the trial and in its briefs, the state of Colorado went out of its way to insist that firing a state employee because she was gay would indeed be arbitrary and illegal under current state and federal law. The point of Amendment 2, they insisted, was to prevent the state from passing special laws that said so explicitly. So perhaps the Amendment could be construed to forbid the state from passing laws that explicitly forbid discrimination on the basis of homosexual orientation; but not to prevent gays and lesbians from invoking neutral laws, like the Smoker's Bill of Rights, that prohibit arbitrary discrimination against all citizens.
This is a generous reading of a sloppily drafted Amendment; but it may capture something of the conflicted impulses of the more moderate supporters of Amendment 2, who claimed to oppose discrimination against homosexuals and, in the same breath, also claimed to oppose state laws that go out of their way to prohibit discrimination against gays. And perhaps the conflicted impulses aren't entirely illogical. The law, for better or worse, has an expressive dimension; and by adding sexual orientation to a list of less morally controversial characteristics, such as race and gender, some citizens may fear that the state is officially endorsing emotions and conduct that they would rather it didn't. In some ways, Amendment 2 is a civil, statewide version of "Don't Ask Don't Tell." It recognizes that homosexuals exist, even tolerates their private lives, but refuses to grant them any public recognition as equal citizens. Amendment 2 reflects the fact that many heterosexuals seem perfectly willing to extend equal rights to gay men and lesbians, as long as the rights aren't demanded too obviously. It's the anti- discrimination law that dare not speak its name.
Unfortunately, the central question in the Colorado case--what is the baseline for distinguishing equal rights and special rights?--may never be engaged by the Rehnquist Court, thanks to a baffling opinion by the Supreme Court of Colorado. Last October, the Colorado Supreme Court struck down Amendment 2, reaffirming its earlier holding that " the right to participate equally in the political process is clearly affected by Amendment 2, because it bars gay men, lesbians, and bisexuals from having an effective voice in governmental affairs."
The weaknesses of this theory are obvious enough. The class of people affected by Amendment 2 is not all gay men, lesbians and bisexuals, but instead all citizens--gay and straight--who happen to support laws that prohibit discrimination on the basis of sexual orientation. And it is hard to see how this group, defined by its political views rather than its sexual orientation, is barred from participating in the political process. As the state of Colorado argues in its brief, no citizens have been disenfranchised, prevented from casting an equally weighted vote, or in any way hindered in electing the representative of their choice.
Of course, Colorado voters who support anti-discrimination protections for gays and lesbian must now seek change through constitutional politics, rather than ordinary politics. But no one has a right to have certain issues decided by representatives of the people rather than the people themselves. In its starkest form, the political participation argument evokes the most radical arguments of Lani Guinier, who suggested that competing groups of citizens are proportionately entitled to have their substantive political agendas actually enacted by legislatures, at least some of the time.
Stripped of its legalisms, the political participation argument is really an argument against plebiscitary democracy. Quoting James Madison on the dangers of majority factionalism, Julian Eule of UCLA argues that all of the filtering mechanisms present in ordinary legislative decisions--informed deliberation, political horsetrading, coalition building, and so forth--are dangerously absent in the crude, one-shot majoritarianism of a constitutional referendum. But this is a utopian view of the way legislatures operate. It's hard to argue with a straight face that the debate in Congress about, for example, the balanced budget amendment was more deliberate and soberly Madisonian than the debate among the citizens of Colorado about Amendment 2. Moreover, the anti-populists are quoting Madison out of context: the constitutional guarantee of a Republican Form of Government, far from expressing a suspicion of direct democracy, was in fact designed to protect the right of a majority of citizens to alter and abolish their governments as they pleased.
More convincing arguments are available, and the best of them appears in an exceptional brief filed by Laurence Tribe. Avoiding flamboyant claims about political participation, Tribe argues that Amendment 2 is a literal violation of the Equal Protection Clause of the Fourteenth Amendment, which says that " n o state shall ... deny to any person within its jurisdiction the equal protection of the laws." By creating, for homosexuals, "a unique hole in the state's fabric of existing and potential legal protections" against the wrong of "discrimination," Tribe argues, Colorado has provided "a paradigm case of what it means for a state to structure its legal system so as to deny' to person s within its jurisdiction the equal protection of the laws.'"
When it comes to the administration and enforcement of existing state laws, Tribe is clearly right that gay men and lesbians in Colorado, in the wake of Amendment 2, have less protection than the most favored classes of citizens. For example, imagine that the police decided not to prosecute murderers in Colorado when the victims were homosexual. Homosexuals would, indeed, be prohibited by Amendment 2 from invoking the Denver police department regulation which provides that "Members must be of service to anyone ... in danger,... regardless of race,... gender, age or sexual orientation." But this wouldn't leave homosexuals any worse off than, say, left-handed people, who don't have the benefit of special police department regulations or executive orders prohibiting state officers from discriminating against them in the first place. (Left-handed people, however, arguably need special regulations less than homosexuals do.) And of course, homosexuals and left- handed people and everyone else continue to be protected by the federal Constitution, which protects all persons, regardless of their status, from arbitrary and irrational state actions.
The weakness of Tribe's elegant argument is that it relies on an unusually abstract definition of "discrimination." Tribe concedes that the Colorado Legislature has no obligation to adopt laws protecting homosexuals from private discrimination in housing or employment, making a distinction that puts him in uneasy agreement with Sullivan. He also concedes that if the Colorado Legislature did adopt civil rights protections for homosexuals, it would be free to change its mind and to repeal them. But he argues that the citizens of Colorado, in a popular referendum, should not be permitted to preclude homosexuals from receiving even the possibility of future protection under any state or local law "from an entire category of injurious conduct at least some of which is concededly wrongful." This is the point where Tribe's argument seems to break down. After all, firing a gay employee, or refusing to rent a house to a gay tenant, is not "concededly wrongful" in a state like Colorado that has declined to adopt laws banning employment or housing discrimination on the basis of sexual orientation. By defining the wrong of " discrimination" so abstractly, Tribe elides the difference between forms of discrimination that are and are not wrongful and illegal under state and federal law. Tribe is right that some of the discrimination that Amendment 2 insulates from challenge is "concededly wrongful." But then why shouldn't a court wait until it is confronted with particularly troubling applications of the Amendment, rather than striking it down across the board?
Finally, Tribe's argument falters a little in its definition of groups. A state may not, he claims, "set some persons apart by declaring that a personal characteristic that they share may not be made the basis for any protection pursuant to the state's laws from any instance of discrimination, however invidious and unwarranted." If Amendment 2 really does sweep this broadly, then he may have a point. But of course, most state laws and policies discriminate against certain groups on the basis of their personal characteristics. In 1979, for example, the Supreme Court upheld as perfectly reasonable the New York City Transit Authority's policy of refusing to hire drug addicts. And couldn't the voters of New York, in their state constitution, prohibit the New York Legislature from overturning the policy by passing an anti-discrimination law for drug addicts? As long as drug addicts retained the right to challenge particular instances of unjustified discrimination under neutral laws, they would hardly be denied "equal protection." Of course, there are plausible arguments that gay men, lesbians and bisexuals should receive more legal protection than drug addicts or left- handed people, because sexual orientation originates in a deeper and morally neutral part of a person's identity, or whatever; but these are difficult and controversial arguments, and Tribe's powerful brief, for strategic reasons, declines to make them.
By reluctantly defending the constitutionality of Amendment 2, at least if it's read narrowly rather than broadly, I don't mean to minimize the indignity of a referendum that singles out a particular group of citizens and denies them the right to seek redress for "claims of discrimination" based on their deepest personal characteristics. Even if the Amendment has merely symbolic rather than practical effects, the symbolism is a stark and public insult to the dignity and equality of homosexual citizens. But the ambiguities of the Romer case are the inevitable result of an anxious transitional period, when anti-discrimination protections are often lumped together in the public mind with the travails of affirmative action and when the baseline for equal rights as opposed to special rights is hotly contested. This transitional debate is unlikely to be resolved by judicial fiat, nor should it be. It should be resolved by reasoned cultural and political argument. As the relatively close vote on Amendment 2 suggests, this is by no means a hopeless cause. And as the pro-life movement can attest in the wake of Roe v. Wade, there are worse things to be endured than a dramatic defeat by the Supreme Court.