Transcript of "The Lawyers Guild Show" KPFK-FM Radio Pacifica Foundation 3729 Cahuenga Blvd. Studio City, CA Thursday, June 13, 1996 7:00 p.m.

Host: James T. Lafferty, Executive Vice-President,

National Lawyers Guild and Executive Director Los Angeles Chapter

Guests: Lorri L. Jean, Executive Director, Gay and Lesbian Center

(formerly Gay & Lesbian Community Services Center) Los Angeles, CA

Jon W. Davidson, Legal Director, Lambda Legal Defense & Education Fund

Los Angeles, CA Christine A. Littleton, Professor of Law

and Chair, Women's Studies Program UCLA

Los Angeles, CA

---------------------------------------

Lafferty: On May 20, the U.S. Supreme Court rendered a profoundly important and -- for a change -- enlightened ruling concerning the rights of gays and lesbians. It overturned Amendment 2 to Colorado's Constitution, an amendment which, in essence, established state-sanctioned discrimination against gays and lesbians. Amendment 2 had sought to prevent the State of Colorado (and any local government in that state) from passing legislation to protect the constitutional rights of gays and lesbians.

In rendering its decision, Justice Kennedy, writing for a 6-3 majority, noted that "the amendment seems inexplicable by anything but animus toward the class that it affects;" and that "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." And in ruling that Amendment 2 violated the U.S. Constitution's equal protection clause, the Court said: "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."

Leaders in the gay and lesbian movement were quick to hail this decision as a great day for fair-minded Americans. Or as the press release from the L.A. Gay and Lesbian Community Services Center stated, "The Supreme Court made it clear that while religious extremists may have a chokehold on our government, they cannot overcome our Constitution, which guarantees to all of us life, liberty and the pursuit of happiness."

Well, just how important is this Supreme Court ruling? What are its implications for other issues impacting the gay and lesbian community, issues such as gays in the military or mandatory AIDS testing or same-sex marriages? And what role will this decision and the whole battle over [lesbian and gay] rights play in this year's presidential election campaign.


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 183

To help us understand the significance of the Supreme Court's ruling on the Colorado amendment and its implications for other legal battles of the gay/lesbian community, I'm pleased to say we have some wonderful guests with us this evening. From UCLA's School of Law, Professor Chris Littleton, who heads UCLA's Women's Studies program and is a past president of California Women's Law Center.

From the L.A. Gay and Lesbian Community Services Center that I mentioned before, Lorri Jean, who is the Executive Director of that group, which is the world's largest service center for gays and lesbians. And Jon Davidson, formerly with the ACLU of Southern California and now Supervising Attorney of Lambda [Legal Defense and Education Fund], an organization devoted to fighting for [lesbian and gay] rights in the courts; Lambda was in fact co- counsel on the case I was mentioning earlier. Welcome to all of you to The Lawyer's Guild Show.

Lorri Jean, let me start with you, if I may. Give our listeners some background on the case of Romer vs. Evans, the Supreme Court case that overturned the ban on protective legislation for gays and lesbians in Colorado. Tell us a bit about the political fight leading up to its passage and what's happened since in the courts.

Jean: Well, the case was precipitated by the state of Colorado having an initiative in which they approved this amendment that would take away from so many gays and lesbians in Colorado their civil rights. And the law did pass at the same time that a similar initiative in Oregon did not. What immediately happened is suit was filed because gay and lesbian people and other fair-minded people in Colorado didn't want this to be able to be enacted or implemented. The Colorado Supreme Court struck down amendment 2, finding that it was not proper, that it was violating the equal protection clause and it went on up to the Supreme Court. And there was lots of activism that went to play in all of this. There were literally tens of thousands of people who got active in the battle to defeat amendment 2 before it was voted in by a slight majority of the citizens of Colorado and, ultimately, I believe that the fact that the Supreme Court issued such an enlightened decision, as you put it earlier, is due to the political activism that has occurred around this country by the gay and lesbian community over the last ten years.

Lafferty: Tell us a bit, as to what the legal arguments were that the state of Colorado put forth to the Supreme Court as to why Amendment 2 should be upheld. What did they argue in defense of upholding this amendment?

Jean: Well, they argued that they were simply trying to take away "special" rights and that it was part of the right of the people to insure that resources were properly going to fight other forms of discrimination and not this kind of discrimination.

They made several arguments like that, that didn't really make a lot of sense, and fortunately the Supreme Court saw right through them.

Lafferty: You're saying they argued in a sense that this was special interest legislation in the extreme if you could have a law passed just to protect the rights of gays and lesbians?

Jean: Right. They argued that to protect gay and lesbian people from discrimination was giving them special rights, even though they protect lots of classes of people in Colorado from discrimination, but the religious extremists who were fighting for Amendment 2 only focused on gay and lesbian people.


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 184

Littleton: What's even more interesting about this, is that if you look at the city ordinances that Amendment 2 was aimed at, which were claimed to be special protections for gays and lesbians--those ordinances were in fact protecting everyone, because they protected against discrimination on the basis of sexual orientation. And as a friend of mine said, believe it or not, all of us have one. And so the city ordinances protected heterosexuals from discrimination as well as gay men, lesbians and bisexuals.

Lafferty: And there are all sorts of legislation in this country to protect disabled persons, to protect people against discrimination because of their age, their sex, and so forth.

Davidson: As Chris noted, the particularly important point about the ordinances Amendment 2 sought to repeal and preempt is that these ordinances don't give lesbians and gay men any rights that heterosexuals don't have. The ordinances provide that you cannot discriminate on the basis of sexual orientation. So, if a straight person was fired because he or she is heterosexual, that person could sue under these ordinances. Justice Kennedy beautifully explained in his opinion that there's nothing "special" about these laws. Everyone has the exact same rights to sue if they are discriminated against based on their sexual orientation, just as laws that prohibit race or sex discrimination cannot be said to give "special rights" to African-Americans or women. Straight people may not need protection against sexual orientation discrimination as much as others because, as the people in power in our society, they are not subject to discrimination on that basis very frequently. But this doesn't make the rights granted under these ordinances "special rights" for a particular group. [Everyone has the same rights -- it's just that some people may need the protection of those rights more than others because, as members of oppressed groups, they are being denied equal treatment more frequently. What is key is that these laws give everyone the same rights and do so only in order to promote equality. Justice Kennedy also powerfully questioned the notion that protecting people in their right to keep their jobs and not be fired based on who they are is somehow a "special" right.] For both these reasons, he pointed out, use of the term "special rights" is very deceptive. One of the many wonderful things about Justice Kennedy's opinion is that it promises to put to an end, once and for all, to the religious and political right's attempt to mislead people by using this rhetoric of "special rights."

Littleton: It's as if saying that sex discrimination laws only protect women, and when you think about it, some of the greatest beneficiaries of laws against sex discrimination were men who wanted to work for the airlines and were barred from the role of flight attendant because that used to be an all female category. So thousands of men are now working in the position they want because there's a law against sex discrimination in employment.

Lafferty: Is it fair to say that what this amendment in Colorado attempted to do was in fact make it impossible for gays and lesbians to be included in those laws which prevent a whole panoply of kinds of discriminations.

Jean: Oh absolutely. It did that and much more. It also prevented communities from getting active and deciding themselves who they were going to insure were treated equally, so although you had places like Aspen and Boulder, which had enacted these kinds of laws to insure that discrimination would not occur, the state was now saying to them you can't do that, in effect, keeping gay and lesbian people out of the political process. And that was something that the United States Supreme Court found abhorrent and fortunately not something that people in Colorado are going to have to face now.


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 185

Lafferty: Now, Justice Scalia got quite exercised over this decision, didn't he, and wrote, I thought, a rather amazing dissent. [laughter] Jon, you and I were talking about it a little earlier this afternoon, and you might want to repeat what you said to me.

Davidson: Justice Scalia's dissent is one of the most intemperate dissents I've ever read. I've heard people comment that, when Justice Scalia submitted the dissent, he forgot to translate parts of it from the original German. [Laughter.] And that's not as funny as you might think, because the first sentence of his dissent is: "The Court has mistaken a KulturKampf for a fit of spite." Justice Scalia has a tendency to use very high language. He's enchanted with his own rhetorical skill and frequently uses it an attempt to cover up weaknesses in his analysis. [In this case, his excesses are particularly inappropriate.] In the first place, why would one choose to begin an opinion -- particularly one dealing with civil rights issues -- with a German term, especially one that incorporates the word "kampf," with its reverberations of Hitler's Mein Kampf and the persecution and extermination of Jews, gay people, and other minorities in Nazi Germany? In addition, there is an irony in Justice Scalia's use of this particular German term. "KulturKampf" doesn't mean what he seems to think it means. While the term's literal translation is "culture war" or "cultural struggle" [English phrases that Justice Scalia easily could have employed.] I've learned that the German term actually refers to a specific period of German history, when the Prussian Imperial government in the 1870s, fearing the power of members of the Catholic Church, put 1800 German priests in jail, and confiscated 16 million marks of church property. "KulturKampf" thus actually refers to a wholesale government attempt to disempower members of a minority group by stripping them of their rights. When one understands this, it is clear that this is a KulturKampf that the lesbian and gay rights movement has been fighting, because Amendment 2 was a broad-scale attempt by the majority in Colorado to deprive a minority group of its rights. What was at issue was not a simple disagreement about where our culture should be headed. [Instead, Amendment 2 represented a KulturKampf in its true historical sense: a government "fit of spite" against those who are different.]

Lafferty: Alright, it's a victory, a major victory, we understand that. I guess the next question then is how excited should we get over this victory? That is, what might it mean for some of the other vexing issues that face or that stand in the way of gays and lesbians being full citizens in this country? I'm thinking of sodomy laws. I'm thinking of employment discrimination, housing discrimination, discrimination in the military. I mean, can we assume that this heralds the falling like dominoes of all of those other barriers to full participation in this society?

Littleton: Clearly not. [laughter] As the law professor, I always have to say on the one hand, on the other hand... But there is, I think, great reason to feel differently about a whole set of legal issues now than before this decision. For one thing, it's a six-three decision; it is not one of those painful five-four decisions with fifteen different opinions by only nine justices. This is a very clear majority, and that is something that we have been unable to see around these issues lately.

These issues have been fractious and fractured, and so it's a much clearer statement than you might get. Also, it's written by Kennedy, who is conceded to be a moderate to conservative judge. I think it's no accident that he comes from California, which has a reputation for sort of thinking more broadly than one's own experience, for coming into contact with people with other kinds of experience. The multicultural atmosphere in California makes a difference, and sitting on the Court of Appeal in the Ninth Circuit means that you come into


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 186

contact with a number of different cultures that you might be completely isolated from in Washington, D.C. In fact one of the problems of the Supreme Court is that since Thurgood Marshall retired and then left us, the Court has been substantially out of touch with the vast heterogeneity of the American populace. And so I think that, in and of itself, is the sense that a moderate conservative could open his mind to views and to cultures that are very different and treat them simply as part of the constitutional argument is a very important thing, and does in fact change the culture that we're addressing.

I think as far as other cases coming to the Court, on the one hand, we have a whole new ballgame. On the other hand, though, most of the problems that lesbians, gay men and bisexuals face with respect to discrimination are not treated so blatantly as Colorado treated us. I mean, this is a blatant attempt to wipe out rights on a blanket basis. It's much harder to be sanguine about what might happen if a more narrowly tailored kind of statute were at issue, or if the extension of a previously unrecognized right were at issue as in the marriage case [Baehr vs. Lewin].

Davidson: I think that's right, but I also think that [this decision is ground breaking in a number of respects]. What has changed most profoundly is that, with this opinion, the Supreme Court firmly has embraced the exact same analysis for thinking about lesbian and gay equality and discrimination issues that the Court has applied in all other contexts. That may not seem like much, but I've been litigating in this field for about ten years and the biggest problem we have had to face in fighting for our rights in the courts has been the tendency of many judges to act like there is a "gay and lesbian exception" to the Constitution. [Before this decision, many lower courts seemed to feel free to find that the rules that apply when other people's rights are at issue don't apply when it's queer people's rights that are at stake.] The Supreme Court at last has made it very clear that we are protected by the same constitutional guarantees as everyone else. As Justice Kennedy explained, we cannot be treated as strangers to the government or the Constitution. This case at its essence thus holds that it truly is "our Constitution too!" A second key part of the decision is the holding that, whenever the government tries to treat lesbians and gay men differently from others, the Constitution at a minimum requires the government to have a legitimate reason for that differential treatment. A third far-reaching ruling is the majority opinion's holding that animosity toward, or disapproval of, homosexuality cannot be used as a justification for treating gay people differently from others. This will have sweeping ramifications in cases to come. It doesn't necessarily mean that we are going to win every case from here on in, but it certainly will help us fight off arguments that regularly have been raised in the past. One of the few nice things I have to say about Scalia's opinion is that it trots out every horrible argument that we've had to deal with in the past, and yet the majority wasn't moved by any of them. In this way, as but one example, the majority opinion should put an end to the notion that the existence of sodomy laws in some states is a justification for discrimination against us. Finally, this decision -- and this is a first for a U.S. Supreme Court opinion -- acknowledges that discrimination on the basis of sexual orientation is discrimination on the basis of status and not on the basis of conduct. The decision rejects outright the extreme right's attempt to define lesbians and gay men only by a portion of the sexual conduct in which some of us engage, even though many heterosexual people engage in the exact same sexual conduct as well.

Jean: Right, well, and this opinion was so exciting and I think is worthy of celebration from all corners of the country because finally the highest court in the land said that gay and lesbian people are protected by the equal protection


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 187

clause of the constitution, and that is the most significant legal victory that we have had in the gay and lesbian civil rights movement, and I think it is one of the most significant advances in our entire liberation movement.

Lafferty: Is this the first time the Supreme Court has said that in essence?

Jean: Absolutely the first time.

. . .

Littleton: Jim, can I follow up on what Lorri Jean said?

Lafferty: Oh, please.

Littleton: Because I think that you can't overstress the significance of the first time the Supreme Court recognizes a particular group to have status under the Constitution. If we could think historically about this, the first time the Supreme Court struck down a law on the basis that it discriminated against women was in 1971. And think about what the status is now of sex discrimination, and we're only talking about from 1971 until 1996. Therefore, we are at the start then of the same potential for growth and potential for recognition of a kind of discrimination that has just been silent or even approved of for far too long, which is exactly the way discrimination against women was treated. It was treated as either something that women had to put up with because it was just part of the world, or in fact it was a good thing that women were discriminated against because after all, we were unequal. And I think you see the same kind of arguments made in the case of lesbians, gay men and bisexuals that you saw in 1971 made against women, and here we have the same sort of potential trajectory.

Jean: Right. And there will come a time, and hopefully it will not be as long as another twenty-five years, when people will look back at this decision and will say that was the decision that made gay and lesbian people win the war when it comes to true equal rights legally. We won't win every battle just because of this decision now, but over the coming years I believe that we will ultimately win full equality under the law in this country and this will be one of the most important victories in that battle.

Can We Relax Now? An Essay About Ballot Measures and Lesbian, Gay and Bisexual Rights after Romer v. Evans

William E. Adams, Jr. Associate Professor of Law, NOVA Southeastern University


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 188

Introduction As academics and practitioners begin to debate the ultimate impact of the United States Supreme Court's decision in Romer v. Evans1, it is important to consider its immediate effect on ballot measures concerning the rights of lesbians, gays and bisexuals around the country. Other commentators in this colloquium will analyze the constitutional arguments involved in Romer so this essay will focus instead on some of the remaining anti-gay ballot initiatives that may survive constitutional attack, and it will also address problems with measures that may be raised in the future. It is important to recognize that many laypersons may falsely believe that all anti-gay ballot measures have been declared invalid pursuant to Romer. This broad reading of the case is unlikely to

be adopted by the courts in regard to at least some of the measures, particularly those that attempt a more "subtle" discriminatory approach or merely offer to repeal existing laws. For a minority group that some would argue already tends to be more divided and complacent than is in its best interest, allowing this false sense of security to exist unchallenged could have disastrous consequences. If opponents of equal rights for gays, lesbians, and bisexuals continue to propose anti-gay ballot measures, the lesbian, gay and bisexual community must be prepared to counter them. Part I of this essay will very briefly review the holding in Romer. Part II

will discuss the ballot measure process, explaining the differences between the different type of measures, the history of the process, and the advantages and disadvantages of it. Part III will discuss the impact of Romer on these ballot proposals. Finally, the essay will consider the debate about how the lesbian, gay, and bisexual movement should devote its resources in dealing with ballot measures. Some believe too much time and money is being spent fighting these measures rather than dealing with other political and legal battles. In addition to fighting anti-gay measures, some advocates argue that lesbians, gays, and bisexuals should affirmatively use the plebiscite process for passage of positive measures which could muster popular support. However, such an undertaking should not be attempted without a realistic evaluation of success. Recent research indicates that the likelihood of electoral success on matters concerning sexual orientation is small. Part IV of this essay will discuss some of this important research and its implications for future political and legal strategies.

I. Procedural History of Romer In the last two national elections, groups hostile to laws that prohibited discrimination on the basis of sexual orientation mounted efforts to repeal existing protections and prohibit similar measures from being passed in the future. In 1992, voters in Oregon rejected such a measure while the voters in Colorado approved theirs2, a measure known as amendment Two.3 An action to declare the initiative invalid and enjoin its enforcement was commenced in the District Court for the City and County of Denver.4 The trial court granted the preliminary injunction, which was appealed to the Supreme Court of Colorado.5 Relying upon a series of United States Supreme Court voting rights cases, the Colorado Supreme Court upheld the injunction and remanded the matter for trial.6 On remand, the trial court enjoined enforcement of Amendment 2 and the Colorado Supreme Court affirmed the ruling. In addition to other arguments, the State asserted that it was simply denying special rights to homosexuals.7 The United States Supreme Court found this reading of the amendment to be "implausible."8 The majority opinion affirmed the judgment of the Colorado Supreme Court, but did not adopt its rationale.9 Instead, it found that the Amendment lacked a rational relationship to legitimate state interests.10 Justice Scalia, joined by the Chief Justice and Justice Thomas, wrote a scathing dissent, including an assertion that the decision contradicted the holding by the Court in Bowers v. Hardwick.11 As noted, other authors in this issue will critically analyze this opinion so this essay will not comment further about it except to briefly address in Part III whether it will sweep aside all other anti-gay ballot measures.

II. Ballot Measures--Democratic Ideal or Dangerous Weapon of Intolerance? A. DIFFERENCES BETWEEN REFERENDUMS AND INITIATIVES

In twenty-three states and the District of Columbia, voters may approve a variety of statutory or constitutional provisions directly through the electoral process by voting upon the specific legislation or constitutional amendment.12 In addition, some city and local governments permit voters to introduce or approve local laws through the ballot box. Although some countries consider all such measures to be referendums, with initiatives considered a special type of referendum, this country usually makes a distinction between the two.13 In the United States, referendums are measures which allow voters to approve or remove statutes or ordinances that have been proposed or enacted by a legislative body.14 By contrast, voter initiatives are proposals for legislation or constitutional amendments which are brought directly to the ballot through some type of petition process.15 The referendum and initiative processes are thus sometimes called "direct democracy" as opposed to "representative democracy" because they bypass the legislative and executive branches.16 This article will utilize the same distinction in discussing referendums and initiatives. When discussing both types of measures together, the terms "ballot measures" and "plebiscites" will be used. B. HISTORY The process for ballot measures was initially proposed by progressive movements which believed that it offered the public an opportunity to counter the undue influence of special interest groups.17 Of the twenty-three states utilizing the process, eleven are in the west and eight are either Midwest or Plains states.18 The idealistic notion that this process is democracy in its purest f


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 189

orm, a form in which the people directly express their preference without the mediating influence of intermediaries, has been recognized by a number of courts.19 Recent public disenchantment with elected officials has caused a surge of growth in using the process.20 There are several problems with this romantic notion of plebiscites. First, it ignores that the country was founded upon

the principle of representative, not direct, democracy, and that the ballot measure process now seems more, not less, susceptible to the manipulations of special interest groups. In addition, the difference between a special interest group and an unfairly oppressed minority may be one of perception, depending upon one's political philosophy. Members of the religious right and gay and lesbian organizations thus trade charges that the other side represents special interests. Thus, the extent to which the legislative process should assist or deter minority interests is one that generates considerable debate. However, the tendency in this country to use the ballot measure process against persons from racial, ethnic, and sexual minority groups has been noted and analyzed elsewhere.21 C. ADVANTAGES/DISADVANTAGES The utility and impact of the ballot measure process have been discussed by both political science and legal scholars. Although the latter have debated it as a philosophical matter, the former have conducted some research to determine its practical effect, which will be discussed in Part IV below. In spite of the criticism of the process, polls in California, where usage of the process has grown dramatically, and Colorado indicate that voters still like the process.22 Commentators who support the process note that it permits individuals to express their decisions directly without dependency upon a third party to sponsor and introduce the

legislative proposal. By utilizing this process, the measure circumvents the checks and balances inherent in the representative legislative process, which some believe permit multiple opportunities for special interest groups to exert pressure.23 It is this same circumvention of checks and balances which critics of the process point to as problematic. They view these procedures as necessary to ensure that the majority does not unfairly disadvantage minority groups.24 Although few critics would call for an abolition of plebiscites, they criticize the tendency of courts to give more deference to ballot measures than they do to laws passed through the normal legislative process. They argue that the fact that these measures avoid the checks and balances should subject them to heightened scrutiny because the plebiscite process avoids the fact-finding and amendment process existent in legislative bodies. They argue further that because legislation normally must be approved by both the legislative and executive branches, the ballot legislation concentrates power instead of distributing it as the representative process does. Ballot measures

cause other problems by eliminating the deliberative process.25 They reduce decisions on issues, some of which are complex, to simplistic yes or no resolutions. Some commentators have noted that such a polarized reduction of issues fails to recognize the problem of resolving majority sentiment when there are three or more alternative solutions to a problem.26 Further, the proliferation of these ballot measures has resulted in increased confusion as voters are confronted with a growing number of propositions on each ballot, some of which are difficult to understand. In 1990, California's statewide ballot included seventeen initiatives and constitutional amendments, including a "16,000-word environmental measure."27 Perhaps as a result, more than ten percent of the persons who voted in California did not vote on any of the ballot measures.28 Additionally, researchers found that the readability of the ballot descriptions in California and Oregon were at the eighteenth-grade level.29 Based upon the readability levels of ballot descriptions and the records concerning years of schooling, researchers found that less than one-fifth of the adults in California, Massachusetts, Oregon, and Rhode Island had the ability to read and understand the ballot measures and descriptions in their states.30 Research also indicates that voters will take "information shortcuts" rather than gather all of the possible information about a proposition.31 When you add to these problems the number of persons who do not vote in any

particular election, the arguments that these measures actually reflect the majority viewpoint of the public become weaker. The plebiscite process is better geared to "small, single-minded, well-organized interest groups" than "large dispersed groups with diverse agendas."32 Contrary to the romantic notion that ballot measures are populist-driven measures devoid of interest group manipulation, money has become increasingly important to the process as paid signature-gathering has become increasingly common.33

As one commentator has noted in discussing the process in California, "It was a $130 million bonanza for political consultants, advertising agencies, and television stations in 1988."34 In addition to ensuring ballot access, research has also shown that funding can be a primary factor in determining initiative outcomes.35 Why proponents believe that this electoral process is less vulnerable to the types of pressures and manipulations that they believe make elections for public officials suspect seems to be more a matter of wishful thinking than an analysis of what happens in ballot measure campaigns. Finally, critics note the tendency for such measures to be used by the majority to mistreat unpopular minority groups. It is this latter concern that is particularly critical to lesbians and gays because of the long history of oppression suffered by members of sexual minorities in this country.

III. Impact of Romer on other Anti-gay Ballot Measures A. TO WHAT EXTENT WILL MEASURES MOTIVATED BY ANTI-GAY ANIMUS RESULT IN THEIR INVALIDATION BY COURTS? Although it is not the primary purpose of this essay to exhaustively analyze the potential reach of the Romer decision, it must be

recognized that a very expansive interpretation of the decision could result in the nullification of many of the anti-gay measures. If the courts should provide expansive interpretations to the discussion in Romer about the illegitimacy of animus toward homosexuality as a rational basis for disparate treatment,36 then it is possible that a broad range of ballot measures that express discriminatory sentiments about lesbians and gays could be struck.


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 190

Because the present United States Supreme Court is not one that appears anxious to provide an expansion of individual rights, it seems unlikely, however, that such a broad interpretation will occur in the immediate future. The opinion itself does not indicate

that it invites such an extension. In criticizing Amendment Two, Justice Kennedy mentions in several places that it is unusually broad and sweeping in its scope.37 Its breadth is problematic in both the number and scope of laws struck as well as the fact that it invaded legislative and executive powers. Further, courts have generally declined to apply heightened scrutiny to ballot measures resulting in the fact that they are rarely entirely invalidated.38 This includes a relatively recent case when the Court declined to apply heightened scrutiny to California's Proposition 13, which provided property tax relief.39 B. REPEAL INITIATIVES The type of anti-gay ballot measure that is perhaps most likely to survive an application of the Romer case is the repeal measure that seeks to void legislation or ordinances that prohibit sexual orientation discrimination. Because jurisdictions are not constitutionally required to have anti-discrimination laws protecting sexual orientation, it would seem difficult to argue that a jurisdiction could not repeal such an ordinance. It could be argued that if the repeal is by initiative, the process should undergo heightened scrutiny, but it seems unlikely that a complete ban on such measures would be enforced by the courts. C. FAMILY LAW AND OTHER INITIATIVES The passage of the misnamed "Defense of Marriage Act"40 and the continued mistreatment of gays and lesbians in the family law area41 bode ill for the potential use of ballot measures against lesbians, gays, and bisexuals in the family law area. Polling data concerning gay and lesbian rights seems to indicate that it is in this area where the American public still seems to be most uneasy. This unease about lesbian and gay families could make initiatives which target those issues new weapons in the arsenal of religious conservatives. Similarly, reviving sodomy laws where they have been repealed or proposing other measures that can help anti-gay groups organize and recruit could also cause such groups to continue to offer anti-gay measures. On the other hand, the success which such groups have had in legislative bodies on family law issues may make it unnecessary to utilize ballot measures. However, the importance of ballot measures as organizing and fundraising tools could make these types of measures popular in the future, particularly in areas where lesbians and gays are able to convince legislative bodies to not pass hostile legislation. Again, it would seem unlikely that all such measures would necessarily be struck pursuant to the reasoning offered by the Court in Romer.

IV. Fighting Anti-gay Initiatives or Developing Our Own A. CAN WE EFFECTIVELY USE THE BALLOT MEASURE PROCESS FOR OURSELVES? Before utilizing or revising the ballot measure process, advocates must first decide whether the process is more detrimental than beneficial for lesbians and gays. If advocates make it difficult to get a proposition on the ballot, it will create barriers for positive proposals as well as negative. With polls showing large percentages of persons opposing discrimination on the basis of sexual orientation in employment, it could be argued that anti-discrimination laws should be proposed through the ballot process. Further, proposing measures as opposed to responding to those offered by opponents helps prevent the agenda from being controlled by the opponents of lesbian and gay rights. Before proposing ballot initiatives, however, activists need to be aware of the very real barriers to getting such proposals approved at the ballot box. Those who have studied the success rates for gay and lesbian measures at the ballot box do not have good news for supporters of gay rights. Research by political scientists Haider-Markel and Meier indicates that gays and lesbians are likely to lose such elections and are even more likely to do so when they are the ones to bring the matter to a vote.42 In looking at policies which reflect one group's values over another's, referred to as morality policies, they note that compromise is unlikely and interest groups have little influence because their prime resource, information, is of little value in determining the outcome.43 They point out that interest groups like gays and lesbians are most successful when they "discretely lobby sympathetic policy makers" and suggest

incremental policy changes.44 Haider-Markel and Meier note that of the 69 cities, counties, and states that have held initiatives and referenda attempting to repeal sexual orientation anti-discrimination laws, 77% have resulted in wins for the anti-gay forces.45 Of the thirteen initiatives attempting to enact laws protecting lesbian and gay rights, more than 84% were unsuccessful.46 These results are consistent with other research showing that minority groups in general are likely to lose in the initiative process.47 On a more positive note, Haider-Markel and Meier say that lesbians and gays have been more successful in blocking repeals of existing anti-discrimination laws or preventing bans on laws protecting gay rights, than on enacting new pro-gay laws through the use of the electoral process.48 They also note that the fact that five of seven statewide anti-gay ballot initiatives were defeated may indicate that such measures are different from those held on the local level.49 Ultimately, though, they conclude that gays and

lesbians "fare better with political institutions than with elections and better in relatively quiescent elections than they do in highly salient and contentious ballot initiatives . . . "50 Additionally, it has been suggested by another commentator that an effective strategy may be to offer alternative initiatives to combat those which are already on the ballot.51 Alternative initiatives propose different variations or choices on the same issue

to other measures on the same ballot. Thus, in California, the 1990 ballot offered three alternative proposals on the environment and the 1988 ballot offered four alternative measures on reforming automobile insurance rates.52 All of the environmental proposals failed and only one of the automobile insurance measures passed.53 This alternative process can help address the problem of


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 191

the fact that the plebiscite process normally only presents yes or no options without the normal amendment and compromise of the representative legislative process. Observers debate, however, whether offering alternative proposals simplify or further complicate understanding of the underlying issue.54 Even if advocates want to use the referendum/initiative process for pro-gay measures, there are philosophical reasons for those advocates to want to ensure that the process provides adequate safeguards against initiative use by small, but well-financed or zealous groups that are able to take advantage of voter disinterest to place dangerous measures on the ballot. Obtaining electoral victory through fraudulent or other unsavory means does little to advance public confidence in the passed measure. In fact, it is arguable that the public is even more skeptical when minority groups get positive legislation passed since such groups are accused of being "special interest groups." Arguably, procedural requirements should be in place to guarantee that the measure has demonstrable public support. Advocates need to know what the procedural requirements for initiatives and referendums are in their jurisdictions. How many signatures are required? Who may sign the petitions? How are they verified? What kind of access does the public have to the signatures, and what procedures are in place to make sure that the verification process is conducted properly? Who has standing to challenge the signatures or verification process? What are the geographic distribution requirements for the signatures? How long do the proponents of an initiative have to collect signatures? Advocates should also look for answers to the following questions to ensure that the measure is clear and provides the necessary information for voters to make informed choices. What are the textual requirements for the proposition? Are the measures, titles,

and descriptions prepared by a state or local official or may the proponents prepare them? Is there a single subject requirement and how is it enforced by the courts in the state? Are there restrictions on the length or readability of the measure? Are there restrictions on the titles and descriptions of measures to ensure that they are not misleading or blatantly misrepresentative of the proposition? How strictly are these provisions enforced by the courts? Do the textual requirements apply only to what is placed on the ballot or to both the ballot and petition language(i.e., do the petitions have to explain exactly what will be on the

ballot)? Which, if any, of the above changes to the process will ensure more fairness is subject to debate.55 Requiring simplification of measures so that they cover only a single subject or are made more readable are goals that many would support.56 However, making it more difficult to access the ballot may "place agenda control more squarely in the hands of a few moneyed interests."57 Certainly it could be argued that increased judicial scrutiny of ballot measures should be applied, particularly where they attempt to limit the rights of minority groups. It was the fear of majoritarian tyranny which helped lead the framers of the Constitution to choose a representative form of government, although some commentators argue that the motivation was based upon a fear that the minority propertied interests would not be sufficiently protected under direct democracy as opposed to an interest in protecting disadvantaged minorities.58 Because the plebiscite process eliminates protections built into our representative system for minority interests, some commentators believe heightened scrutiny of these measures is necessary, however.59 On the other hand, some commentators are concerned that determining which initiatives warrant heightened scrutiny would be difficult to apply in a consistent and reasoned way. In addition, at least one commentator has argued that to attack the process because

of the failures of equal protection jurisprudence is attacking the wrong source of the problem. Under this analysis, rather than eliminate or restrict plebiscites, equal protection jurisprudence needs to be revised.60 The problem with this conclusion of course is that the latter is a daunting task that those minority groups not currently protected are unlikely to see happen in the near future. One of the objections to changing the scrutiny for certain groups is that there is insufficient empirical data to demonstrate that plebiscites are more dangerous than other forms of legislative enactment.61 However, as noted above, there is empirical data to support the argument that the plebiscite process does in fact disadvantage lesbians and gays, as well as other minority

groups.62 Whether it is sufficient to justify a change in judicial review may be a matter for debate, but it supports rather than undercuts the conclusions by the founders of the Constitution and the legal commentators that majoritarian groups can tyrannize members of minority groups.

Conclusion The Romer case is a significant case, both substantively and symbolically, for lesbians and gay persons. It would probably be too

optimistic, however, to believe that the initiative and referendum processes will not continue to be used against us. The ballot measure has become a potent tool against members of various minority groups in this society. It is also unlikely that the scope of Romer will be broadened so dramatically in the immediate future that all ballot measures aimed at curbing the rights of lesbians and gays will automatically be invalidated by the courts. In addition, the religious right seems to have identified issues where public opinion is still hostile to the rights of lesbians and gays such as in the family law area. Thus, it would appear that lesbians and gays must continue to be prepared for hostile ballot measures. Further, it would be wise to develop strategies that ensure that the process is fair and minimizes the damage caused by these harmful measures.

1. ---U.S.---, 116 S.Ct. 1620 (1996). 2. William E. Adams, Jr., Pre-Election Anti-Gay Ballot Initiative Challenges: Issues of Electoral Fairness, Majoritarian Tyranny,

and Direct Democracy, 55 OHIO ST. L. J. 583, 585, 589 (1994).


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 192

3. Amendment Two 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."

Romer, at 1623. 4. Id. at 1624. 5. Id. 6. Evans v. Romer, 854 P.2d 1270 (Colo. 1993). 7. Romer at 1624. 8. Id. 9. Id. 10. Id. at 1627. 11. 478 U.S. 186 (1986). 12. K.K. DuVivier, By Going Wrong All Things Come Right: Using Alternative Initiatives to Improve Citizen Lawmaking, 63 U..CIN.L.

REV. 1185, 1186 (1995). 13. Daniel H. Lowenstein, Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amendment, 29 UCLA L. REV. 505, 508 N.4 (1982). 14. REFERENDUMS: A COMPARATIVE STUDY OF PRACTICE AND THEORY (David Butler & Austin Ramney eds., 1978) [hereinafter REFERENDUMS]; James D. Gordon III & David B. Magleby, Pre-Election Judicial Review of Initiatives and Referendums, 64 NOTRE DAME L. REV. 298, 299 (1989). 15. Id. 16. Kovis J. Sirico, Jr., The Constitutionality of the Initiative and Referendum, 65 IOWA L. REV. 637 (1980). 17. REFERENDUMS, supra note, at 18. 18. DuVivier, supra note 12, at 1187. 19. See, e.g., Associated Home Builders of the Greater Eastbay, Inc. v. City of Livermore, 557 P.2d 473, 477(Cal. 1976) (footnotes omitted), in which the court states the "initiative and referendum signifies one of the outstanding achievements of the progressive movement"; James v. Valetierra, 402 U.S. 137, 141 (1971), where Justice Black stated that such measures "demonstrate devotion to democracy, not to bias, discrimination, or prejudice."; Mervyne v. Acker, 11 Cal. Rptr. 340, 343, (Cal. Ct. App. 1961), where the court states that the right of initiative or referendum is "one of the most precious rights of our democratic process." 20. DuVivier, supra note 12, at 1189. 21. Adams, supra note 2, 604-7. 22. DuVivier, supra note 12, at 1192-3. 23. Adams, supra note 2, at 592-594. 24. Id. at 596-97. 25. Duvivier, supra note 12, at 1205. 26. Id. at 1201. 27. Id. at 1190. 28. Id. at 1199. 29. Id. at 1195. 30. Id. 31. Donald P. Haid Donaler-Markel and Kenneth J. Meier, Legislative Victory, Electoral Uncertainty: Explaining Outcomes in the

Battles Over Lesbian and Gay Rights (Manuscript presented at 1995 annual meeting of the Midwest Political Science Association, Publication forthcoming in POLICY STUDIES JOURNAL) 9 (1995). 32. DuVivier, supra note 12, at 1204-5. 33. Id. at 1206. 34. Id. 35. Id. 36. Romer, at 1627. 37. See, e.g., Romer at 1625 ("Sweeping and comprehensive is the change. . . The change that Amendment 2 works in the legal status of gays and lesbians in the private sphere is far-reaching, . . .), at 1626( If this consequence follows from Amendment 2, as its broad language suggests,. . .), 1627 (First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single group, . . . Second, its sheer breadth is so discontinuous with the reasons offered for it. . .), 1628 (It is

at once too narrow and too broad.), and 1629 (The breadth of the Amendment is so far removed from these particular justifications


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 193

that we find it impossible to credit them.). 38. DuVivier, supra note 12, at 1210. 39. Nordlinger v. Hahn, 112 S.Ct. 2326 (1992). 40. 110 Stat 2419. The statute attempts to permit the United States and individual states and territories from recognizing marriages between members of the same sex authorized by any state other than the one where the marriage is authorized. 41. For a discussion of continuing problems encountered by lesbians and gays in the courts concerning rights in the family law context, see, William E. Adams, Jr., Whose Family Is It Anyway? The Continuing Struggle for Lesbians and Gay Men Seeking to Adopt Children, 30 NEW ENG. L.REV. 579, 583-587 (1996). 42. Haider-Markel and Meier, supra note 31, at 21. 43. Id. at 3. 44. Id. 45. Id. at 8. 46. Id. 47. Id. 48. Id at 9. 49. Id. at 27. 50. Id. at 22. 51. DuVivier, supra note 12, at 1186. 52. Id. at 1190-91. 53. Id. at 1991. 54. Id. at 1198. 55. Most jurisdictions have only some of these procedural protections.

56. See, e.g., Id. at 1197. 57. Id. at 1197.

58. Robin Charlow, Judicial Review, Equal Protection and the Problem with Plebiscites, 79 CORNELL L. REV. 527, 533 (1994). 59. See, e.g., Derrick a. Bell, Jr., The Referendum: Democracy's Barrier to Racial Equality, 54 WASH. L. REV. 1 (1978); Julian N.

Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503 (1990); Hans a. Linde, When Is Initiative Lawmaking Not "Republican Government"?, 17 HASTINGS CONST. L.Q. 159 (1989). 60. Charlow, supra note 57, at 630. 61. Id. at 626. 62. Supra, note 42.

ARE SAME-SEX MARRIAGE STATUTES THE NEW ANTI-GAY INITIATIVES?

Barbara J. Cox1

Introduction

My partner and I were at dinner with two lesbian friends the night we heard that Romer v. Evans2 had been decided. We rushed to the television trying to find out information about the case and whether the Court had struck down Colorado's Amendment 2 as unconstitutional.3 There was a collective sigh of relief when we heard that the Supreme Court had declared the Amendment to violate the Equal Protection Clause.4

My relief upon hearing the news was two-fold, besides the gratification from finally being recognized as someone to whom the Constitution does apply.5 First, as someone who lived in Wisconsin when the state-wide anti-discrimination statute was passed,6 I understood what Colorado gay men, lesbians, and bisexuals7 had lost by a constitutional amendment destroying the limited protections they had obtained in Aspen, Boulder, and the City and County of Denver prohibiting discrimination on the basis of sexual orientation.8 It is so difficult and time-consuming to get legislation passed, even at the local level, to protect people from sexual orientation discrimination.9 Our community spends incredible amounts of time, energy, political goodwill, and money simply seeking not to be fired, evicted, expelled, or denied benefits due to who we are and whom we choose to love. To have those efforts overturned by a constitutional amendment that, its proponents claimed, was focused on ending "special rights" for gay, lesbian, and bisexual people added insult to injury. Keeping a job, living in an apartment, attending a school, and


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 194

receiving health or welfare benefits is not "special" for anyone, except members of our community.

Second, I was relieved that we would not have to repeat on a state-by-state basis the incredible efforts that had gone into fighting anti-gay initiatives.10 With the protection the Supreme Court gave us, our community was relieved of a continuing battle, election after election, state after state and city after city,11 to keep a purposely ill-informed electorate from voting "against" us. The Supreme Court striking down Amendment 2 made me feel confident that this tact by the religious right would no longer be a viable way for attacking our community.

Having spent the past three and 1/2 years working to help gay men and lesbians obtain the right to marry,12 I immediately began wondering whether Romer might also be used one day to strike down the new anti-recognition statutes as unconstitutional. If we have simply won the anti- gay initiative battle to find it replaced with a similar state-by-state showdown on refusing recognition of marriages by same-sex couples, I think we have won little indeed. This article begins by discussing the recently passed legislation intended to affect whether marriages by same- sex couples will be recognized outside the state where celebrated. This section considers the general choice-of-law rules and marriage validation statutes used by states in deciding whether to recognize out-of-state marriages and looks at the new statutes passed intending to deny recognition to those marriages entered into by same-sex couples, and those couples alone. The next section reviews the majority's reasoning in Romer and applies that reasoning to these new anti-recognition statutes. It concludes that these statutes, like Amendment 2 in Romer, should be held unconstitutional because they single out the marriages of same-sex couples for treatment different than those of other couples, in violation of the Equal Protection Clause.

Legislation To Deny Recognition to Marriages by Same-Sex Couples

Since I have written about the general choice-of-law rules concerning marriage and marriage validation statutes elsewhere,13 I will only briefly describe the issues here. The general rule, which exists with an "overwhelming tendency" in this country, is that a marriage that satisfies the local law where it was celebrated will be recognized as valid by all other states.14 This rule, which has become entrenched in the substantive law of all the states, confirms the parties' expectations, promotes stability, and "...avoids the potentially hideous problems that would arise if the legality of a marriage varied from state to state."15 In fact, almost half of the states have adopted marriage validation statutes similar to section 210 of the Uniform Marriage and Divorce Act.16 That section states:

All marriages contracted within this state prior to January 1, 1974, or outside this state that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties are valid in this state.17

Thus, in states with marriage validation statutes and even in those without them, by using prior case law, one would expect that the marriage of a same-sex couple entered into in Hawaii (once that state permits such marriages following completion of litigation in Baehr v. Miike18 ) would be recognized once the couple returns to their domiciliary state or relocates to a new state.

This expectation is strengthened by the fact that, until recently, very few states statutorily prohibited marriages by same-sex couples. Many state statutes are ambiguous about whether such marriages are prohibited since the marriage statutes contain no prohibitions against marriages by same-sex couples but do refer to the parties to be married as "a man and a woman," "any unmarried male ...and any unmarried female," or "a male and a female person."19 Those few states that do prohibit marriage are in contrast with the vast majority which do not explicitly exclude marriages by same-sex couples.20

The combination of the general rule validating out-of-state marriage, the existence of marriage validation statues, and the absence of statutory prohibitions against marriages by same- sex couples would lead one to believe that, following completion of the Baehr litigation, if Hawaii


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 195

permits marriages by same-sex couples, then thousands of couples will get married in Hawaii, return home, and expect their marriages to be recognized by their domiciliary state. Uncoincidentally as Romer has meant the demise of anti-gay initiatives, there has been an upsurge in state legislatures reaching out for the first time to either prohibit same-sex marriage by statute or to amend their marriage validation statutes to recognize all marriages except those entered into by same-sex couples. According to a report issued by Lambda Legal Defense and Education Fund, as of September 4, 1996, fifteen states have passed anti-marriage bills.21 As with the anti- gay initiative battles, our community was able to prevent anti-marriage bills from advancing in twenty other states22 and two more states had bills pending at that time.23

The statutes in those fifteen states vary in focus and character but all aim at preventing marriage by same-sex couples within the state or refusing recognition of marriages by same-sex couples entered into out-of-state. For example, Tennessee's statute reads: (a) Tennessee's marriage licensing laws reinforce, carry forward, and make explicit the long-standing public policy of this state to recognize the family as essential to social and economic order and the common good and as the fundamental building block of our society. To that end, it is further the public policy of this state that the historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage.

(b) The legal union in matrimony of only one (1) man and one (1) woman shall be the only recognized marriage in this state.

(c ) Any policy, law or judicial interpretation that purports to define marriage as anything other than the historical institution and legal contract between one (1) man and one (1) woman is contrary to the public policy of Tennessee.

(d) If another state or jurisdiction issues a license for persons to marry which marriages are prohibited in this state, any such marriage shall be void and unenforceable in this state.24

Thus, not only did Tennessee explicitly declare the public policy of the state to be recognition of marriages by opposite-sex couples only, it also declared that no marriage by a same-sex couple is entitled to receive marital benefits. Further, it included a section which refuses recognition of a valid marriage entered into same-sex couples in another state or foreign country. This statute's clear intent to affect only marriages by same-sex couples and no others is evident from its exclusive focus on those couples.

Alaska's anti-marriage bill is slightly different but shows the same exclusive focus on same-sex couples. It states: Section 1. AS 25.05.011(a) is amended to read:

(A) Marriage is a civil contract entered into by one man and one woman that requires [REQUIRING] both a license and solemnization....

Sec. 2. AS 25.05 is amended by adding a new section to read:

Sec. 25.05.013. SAME-SEX MARRIAGES. (a) A marriage entered into by persons of the same sex, either under common law or under statute, that is recognized by another state or foreign jurisdiction is void in this state, and contractual rights granted by virtue of the marriage, including its termination, are unenforceable in this state.

(b) A same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage.25


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 196

Similarly, Georgia's new statute states: 19-3-3.1(a) It is declared to be the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state.

(b) No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state. Any contractual rights granted by virtue of such license shall be unenforceable in the courts of this states and the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties' respective rights arising as a result of or in connection with such marriage.26

States with similar legislation include Idaho,27 Kansas,28 Louisiana,29 Michigan,30 Missouri,31 and South Dakota.32 Some states

followed the lead of Utah and amended their validation statutes, withholding recognition to marriages entered into by same-sex couples.33 Other states with statutes like Utah's include Arizona,34 Delaware,35 and Illinois.36

The rush to pass statutes such as these came with the national realization that, following the final decision in Baehr, same-sex couples may be able to marry in Hawaii. The statutes are attempts by legislatures to prevent those who marry in Hawaii from bringing their marriage licenses to other states and having those marriages recognized. The speed of passage and the breadth of the anti-recognition statutes illustrate how the possibility of marriages by same-sex couples was used as an opportunity, in this election year, to pass anti-gay legislation: legislation that in the form of anti-gay initiatives was no longer viable following Romer. What remains to be seen is whether these new statutes will also be declared to be unconstitutional. Using the analysis that the Romer court used, by placing gay men and lesbians in a class worse than all others and passing legislation based solely on anti-gay animus, it can be seen that these statutes, like the anti- gay initiatives before them, should also be found to violate equal protection.

Applying Romer to the Anti-Recognition Statutes

1. Gay Men and Lesbians Singled-out and Subject to Disadvantage Two portions of the short majority opinion have applicability to the new anti-recognition statutes. In part II of that decision, Justice Kennedy explores the State of Colorado's argument that Amendment 2 "puts gays and lesbians in the same position as all other persons" so the "measure does no more than deny homosexuals special rights."37 The majority's response to that argument is "[t]his reading of the amendment's language is implausible."38 The court goes on to say that:

Homosexuals, by operation of 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.39

The court continues, discussing how Amendment 2 not only bars gay men and lesbians from securing protection against the injuries caused by discrimination, but goes further by nullifying specific legal protections for them in all transactions in the areas of housing, sale of real estate, insurance, health and welfare services, private education and employment.40 Assuming that the amendment excludes them from "safe harbor in laws of general application,"41 the court concludes that: [W]e 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 on those persons alone.


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 197

Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint....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.42

Just like Amendment 2, many of these new statutes impose a special disability on marriages by same-sex couples. Unions by a man and a woman are given recognition; unions by a man and a man or a woman and a woman are not. Only opposite-sex couples are permitted to marry under many of the new statutes, although that prohibition had, in many of these states, never been statutorily declared before. While it is true that most states prohibit other marriages, such as those by under-age persons, those between persons within certain degrees of consanguinity, and those by persons with more than one spouse, none of those defects exist for most same-sex couples. Most same-sex couples are disabled from marriage simply because both persons are of the same sex.43 Additionally, many of the new statutes refuse recognition of marriages by same-sex couples when entered into out-of-state, even though the general rule, whether stated by marriage validation statute or case law, has been to recognize out-of-state marriages if they were valid where celebrated, even when they violate the state's domestic marriage statutes.44

In much the same way as Amendment 2, statutes which deny same-sex couples the right to marry withhold from us "protections taken for granted by most people" and withhold from us "an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society." The Baehr court listed over fourteen significant rights and benefits that are based on marital status, including tax advantages, property rights, custody and divorce rights at dissolution, spousal privilege and confidential communications, and the right to bring a wrongful death action.45 Additional rights include inheritance rights, inclusion in single-family zoned neighborhoods, health insurance benefits given to spouses of employees by employers, and family memberships in organizations.46 Finally, other benefits that would result from recognition of marriages by same-sex couples include public legitimation and community recognition of one's primary relationship, injunctive relief from prosecution for sodomy, and protection of relationships between the adults and children in a family.47

In addition to denial of these rights and benefits, statutes passed by Tennessee, Alaska, and Georgia, to name a few, impose a disability on the marriages by same-sex couples that is not found elsewhere in any other statutes or case law. Not only do these statutes declare that such marriages are void in the state in question but they also state that any contractual rights granted by virtue of the marriage license are unenforceable within the state. Although some states do refuse to recognize out-of-state marriages that would violate their domestic marriage laws,48 my research has not found a single other statute that imposes a disability with such a broad-sweep.49 In fact, even marriages that were prohibited by state statute as incestuous, adulterous, interracial, or polygamous have not generated such hostility.

When confronted with cases that violated such statutory prohibitions, many courts have been willing to validate the marriage or, at least, to consider the particular incident of marriage at issue in the case and whether the marriage should be recognized for that purpose alone.50 For example, in Ethridge v. Shaddock,51 the Arkansas court upheld an out-of-state marriage that violated the Arkansas statute prohibiting marriages by first cousins. Finding that such marriages do not create "much social alarm," it recognized the marriage since it was valid in the state in which it was celebrated.52 In In re Estate of Lenherr,53 the Court determined that violation of Pennsylvania's paramour statute which prohibited marriage of adulterous partners during the lifetime of the former spouse did not prevent recognition of the marriage for the limited purpose of receiving certain estate tax benefits. The strong public policy in favor of recognizing out-of- state marriages combined with the fact that denial of the tax exemption would not deter adulterous conduct or spare the aggrieved former spouse led the court to conclude that the


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 198

marriage was valid for estate tax purposes.54 In Miller v. Lucks,55 the Court recognized an interracial couple's marriage for purposes of intestate succession, despite the presence of a provision in the Mississippi Constitution prohibiting interracial marriage, because the Court determined that the prohibition was intended to prevent interracial cohabitation in the state, not to void the marriage for all purposes.56 In In re Dalip Singh Bir's Estate,57 the Court determined that public policy would not be negatively affected by dividing property between two wives involved in a polygamous marriage validly entered into in India, although it would have been negatively affected had cohabitation in the state occurred.58

Each of these marriages was recognized, despite violating explicit state statutes against incest, adultery, interracial marriage, and polygamy. Thus, refusing to recognize marriages by same-sex couples for any reason, even the marriage's termination, goes beyond any refusal found in statutory or case law. The only conceivable reason for this difference in treatment is animus against marriages by same-sex couples that exceeds that against incestuous, adulterous, interracial, or polygamous marriages and which, under Romer, may be unconstitutional because it is directly at one group alone.

2. Statute violates Equal Protection

The court's second line of analysis applies traditional Equal Protection jurisprudence to Amendment 2. The court begins that section by noting that "[t]he 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."59 Thus, in order to reconcile this tension, the court applies the standard "that if a law neither burdens a fundamental right nor targets a suspect class,60 we will uphold the legislative classification so long as it bears a rational relation to some legitimate end."61 The court rejects the existence of a rational relationship, using unmistakable language:

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.62

Considering the first objection, the Court notes that 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."63 Because the principle that government "remain open on impartial terms to all who seek its assistance"64 is at the heart of the equal protection clause, the court notes that "[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."65

Secondly, the Court finds that laws such as Amendment 2 "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."66

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....The breadth of the Amendment is so far removed from these particular justifications [such as respect for other citizens' freedom of association and the liberty of landlords or employers who have personal or religious objections to homosexuality] that we find it impossible to credit them....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


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 199

persons undertaken for its own sake, something the Equal Protection Clause does not permit.67

In conclusion, the Court holds that "Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else."68 Saying that a state cannot deem "a class of persons a stranger to its laws,"69 the Court strikes down Amendment 2 as violating the Equal Protection Clause.

Anyone who practices anti-discrimination law knows proving animus is very difficult indeed.70 But, as the Court was able to do by looking at the breadth of the disability imposed by Amendment 2, so too it may be possible to establish anti-gay animus by the breadth of the disability imposed by the anti-marriage statutes recently passed. As noted above, many of those statutes refuse recognition of a marriage by a same-sex couple for any reason. Since some incestuous, adulterous, interracial, and polygamous marriages have been recognized generally or at least for receiving particular incidents of marriage, even though cohabitation within the state might have been rejected, there are no analogies in marriage law for the breadth of the disability imposed against marriages by same-sex couples. Withholding recognition of marriages of same- sex couples for any purpose speaks of the strong anti-gay animus behind these statutes.

Additionally, the statutes do not impose these disabilities only upon their own residents who, by marrying outside the state, seek to evade their domicile's domestic marriage statutes. Several states do have marriage evasion statutes that refuse recognition of marriages entered into by their domiciliaries in an attempt to evade their own marriage statutes.71 However, "the evasion statutes reflect a policy of declining strength,"72 and the modern trend has been away from prohibiting evasion of marriage statutes.73 Even so, these new statutes are not cast in terms of preventing domiciliaries from evading their own domestic marriage statutes. These statutes are across-the-board prohibitions against recognition of the marriages of any same-sex couple for any purpose.

Regardless of whether particular states recognize the marriages of their domiciliaries who go to Hawaii, get married, and then claim their marriages deserve recognition within their domicile, it can be expected that Hawaiian same-sex couples, whose local law permits them to marry, will leave that state and travel or move to other states, some of which have these prohibitory statutes. Their marriages, according to these statutes, will be given no effect, even though virtually any other marriage entered into outside the state by non-residents would be recognized by those states. Should one member of the couple become ill and need medical treatment, these statutes deny one spouse the right to determine medical care for the other as their next-of-kin and may deny that person the right to receive medical treatment as the spouse of a covered employee. Should one of the couple become arrested and tried for a criminal offense, these statutes deny the spouse the right to refuse to reveal confidential marital communications. Should one spouse incur debts, these statutes deny use of the other spouse's income to help repay those debts. The list of disabilities imposed is endless and is imposed only against same-sex couples.

Similar anti-gay animus can be seen by the passage of the "Defense of Marriage Act."74 For the first time, Congress has reached out to define marriage and has done so in a way that refuses recognition of only one type of marriage: those entered into by same-sex couples. Section 2 of DOMA says that one state will not be required by the Full Faith and Credit Clause of the U.S. Constitution75 to recognize a marriage that was valid under another state's law.76 Section 3 of DOMA defines marriage for federal purposes and that definition only includes marriages by opposite-sex couples.77 The clear intent of Congress is to declare that marriages by same-sex couples are not as good as marriages by opposite-sex couples, since only marriages by opposite- sex couples are entitled to recognition of federal purposes.78 Despite differences between the states on whether certain marriages should be prohibited as interracial, polygamous, bigamous, incestuous, adulterous, or underage, the federal government, before DOMA, has usually believed it unnecessary to define "marriage" or "spouse" for federal purposes. Courts have generally found that Congress intended such terms to be defined by reference to state law, despite the


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 200

disparities in those definitions from state to state.79 For over one hundred years, the Supreme Court has recognized that the "whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the law of the United States."80 If the Congress and the Supreme Court have previously felt comfortable leaving it to the states to define marriage for federal purposes, then it must be something specific to marriage by same-sex couples that leaves them no longer comfortable doing so. Since other disputes between the states concerning how marriage is defined have not led Congress to take the step it has just taken, then it must be something about marriage by same-sex couples that leads them there now.

Passage of DOMA and the other state statutes and the language used by their supporters leads one to the seemingly obvious conclusion that animus against the marriages of same-sex couples is the reason behind these statutes.81 Many of those supporters used the need to preserve "traditional marriage" as the basis for passing these statutes.82 Some states included this invocation of "tradition" in the text of the statutes. For example, Tennessee's statute states that "Any policy, law or judicial interpretation that purports to define marriage as anything other than the historical institution and legal contract between one (1) man and one (1) woman is contrary to the public policy of Tennessee."83 Invoking tradition to support the restriction of marriage to opposite-sex couples, when tradition has been recognized by one state Supreme Court to be grounded in unconstitutional discrimination, can be little other than animus.84 The Loving court found Virginia's use of tradition to argue against recognition of interracial marriage to be an attempt to camouflage beliefs of "White Supremacy" that lay beneath the prohibition;85 so too the use of tradition to support the state statutes and DOMA is simply an attempt to camouflage beliefs of "heterosexual supremacy" that lay beneath these prohibitions. If it is discrimination to restrict marriage to opposite-sex couples, then it is animus against same-sex couples to invoke tradition as the basis for such a restriction.

Another way to establish the anti-gay animus inherent in these new statutes is to consider the way in which these statutes would change current marriage validation statutes in the states. I am using California law in this example even though opponents of such legislation in California were able to prevent its passage. A.B. 1982 would have amended California's marriage validation statute to declare that "[a]ny marriage contracted outside this state by individuals of the same gender is not valid in this state."86 That change would have altered California statutory and case law in existence for over 120 years.87 Despite years of continuously recognizing out-of-state marriages as valid in California, the proposed statute would have amended the marriage validation statute for the first time to refuse recognition of only those marriages entered into by same-sex couples.

Since other marriages that were statutorily prohibited in California and were entered into out-of-state have been recognized under the state's validation statute, it seems likely that anti-gay animus prompted the Legislature to consider prohibiting similar recognition now that same-sex couples may soon be permitted to wed. In case after case, California has recognized the out-of- state marriages of its residents which would have been prohibited under its own domestic marriage statutes. For example, in Norman v. Norman,88 in addressing the marriage of an underage woman and a man while at sea off the California coast, the Court explained the rule:

If the marriage in question can find support by the laws of any country having jurisdiction of the parties at the place where the marriage ceremony was performed, we should feel constrained by our code rule and well-considered decisions to declare it valid here, even though the parties were here domiciled at the time and went to the place where they attempted to be married for the purpose of evading our laws which they believe forbade the bans.89

The court refused to recognize the marriage in this case, however, by finding that on the high seas no law existed for solemnizing the marriage and thus it was invalid.90 The California courts have recognized an interracial marriage entered into in Utah which would have been forbidden in California,91 an underage marriage in Nevada although it would have been subject to annulment if entered into in California for lacking parental consent,92 common law marriages entered into


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 201

outside California although they would have been invalid within the state,93 a proxy marriage entered into in Nevada although California forbade them,94 and a polygamous marriage for property distribution purposes even though it would have been invalid if entered into in California.95 Despite statutes prohibiting each of these marriages, the California courts recognized the marriages and the California legislature never amended the marriage validation statute to refuse recognition of such marriages.

Only when faced with the possibility of having to recognize marriages by same-sex couples did the California legislature consider amending its validation statute to refuse recognition of those marriages. If such a statute had passed, it seems virtually impossible to argue that anti- gay animus, toward one group and one group alone, was not at work. If all other out-of-state marriages, even those prohibited in California, have been recognized for over 120 years without prompting the need for amending the state's marriage validation statute, then out-of-state marriages by same-sex couples, even though not explicitly prohibited in California,96 should also be recognized under the state's marriage validation statute. Given that conclusion, it is reasonable to believe that the bill's sponsors must have been showing anti-gay animus by trying to pass such an amendment at this time.

Other states with similar legislative and judicial history have passed antirecognition statutes. By comparing their previous statutory and case law to the changes now imposed against same-sex couples and their marriages alone, one can establish that anti-gay animus must be behind these statutory amendments. Anti-gay animus has no rational relationship to a legitimate state interest. The Supreme Court rejected animus as a constitutionally valid basis for Amendment 2 and may well reject it as a constitutionally valid basis for these new anti-same-sex marriage statutes. With no marriages by same-sex couples occurring in Hawaii until the Baehr litigation concludes, however, there is no practical basis for challenging these statutes as unconstitutional at this time. Once again, our community is being forced to fight a time-consuming, expensive, state- by-state battle against hatred and animus. Although Romer may ultimately lead to a declaration that these statutes are unconstitutional, like the statutes prohibiting interracial marriage in Loving v. Virginia,97 we will have once more had to fight opponents who use ignorance and fear to attack our community.

1 Professor of Law, California Western School of Law. I would like to thank Sheila Sullivan, my research assistant, for her help with this article and Peg Habetler, my partner, for her good humor and unending support.

2 116 S.Ct. 1620 (1996).

3 Amendment 2 states: 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. Colo. Const., Art. II, 30b

4 116 S.Ct at 1622.

5 See infra for a discussion of the equal protection analysis used by the Court.

6 Wis. Stat. 234.29 (1994) requires housing to be open to all regardless of "...sexual orientation...." Wis. Stat. 111.321 forbids discrimination in employment on the basis of sexual orientation.


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 202

7 Transgendered people were not included as protected by those statutes. For a discussion about the inclusion of transgendered persons in the "queer" community, see Elvia R. Arriola, Getting Possessive About the Term "Lesbian" (forthcoming).

8 116 S.Ct at 1623.

9 See generally Barbara J. Cox, Choosing One's Family: Can The Legal System Address the Breadth of Women's Choice of Intimate Relationship?, VIII St. Louis U. Pub. L. Rev. 299 (1989) (describing the efforts to pass a local alternative family rights ordinance).

10 See William E. Adams Jr., Pre-Election Anti-Gay Ballot Initiative Challenges: Issues of Electoral Fairness, Majoritarian Tyranny, and Direct Democracy, 55 Ohio St. L.J. 583 (1994).

11 "Anti-Gay Initiatives Fall Short," St. Louis Post-Dispatch, July 12, 1994, at 1A; Michael Booth, "Gay Rights gain new momentum," Denver Post, October 12, 1994, at A-11; Linda Greenhouse, "The Gay Rights Ruling," New York Times, May 21, 1996, at A1. Cincinnati, Ohio's successful anti-gay initiative was upheld as constitutionally valid in Equality Foundation of Greater Cincinnati, Inc.,

v. City of Cincinnati, 54 F.2d 261 (6th Cir. 1995). The validity of that decision is questionable given the Supreme Court's decision in Romer.

12 Articles that I have written in this area include Barbara J. Cox, Same-Sex Marriage and Choice of Law: If We Marry In Hawaii, Are We Still Married When We Return Home?, 1994 Wis. L. Rev. 1033 [hereinafter referred to as Cox, Choice-of-Law]; Cox, "Coming Out": The Practical Battles of Being Visible As A Lesbian, 5 Rev. of L. & Wom. Stud. 89 (1995) and Cox, Same-Sex Marriage and the Public Policy Exception in Choice-of-Law: Does It Really Exist?, Quin. L. Rev. (forthcoming) [hereinafter referred to as Cox, Public

Policy Exception]. I have also testified before the California Senate Judiciary Committee opposing A.B. 1982 which would have amended California's marriage validation statute to refuse recognition of out-of-state marriages by same-sex couples and am compiling an attorneys' handbook, with Evan Wolfson of Lambda Legal Defense and Education Fund, including state-by-state research on each state's likely response

to out-of-state marriages by same-sex couples. 13 See Cox, Choice-of-Law, supra note 12, at 1064-1066 and 1066-1074, respectively.

14 Id. at 1064.

15 Id. at 1065.

16 Id. at 1066-1069.

17 Id. at 1066.

18 As first decided by the Hawaii Supreme Court, the case was known as Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). That action was commenced against John C. Lewin, then State Director of Health. Following the 1994 general election, Governor Cayetano appointed Lawrence H. Miike to succeed Lewin as Director of Health and, pursuant to Appellate Procedure Rule 43(c)(1), Miike has been substituted for Lewin as a defendant in the case. Baehr v. Miike, 910 P.2d 112, 112 n.1 (1996). Trial in the case following the Hawaii Supreme Court's remand began September 10, 1996 in front of Circuit Court Judge Kevin S.C. Chang. The trial ran about two weeks with a final decision from the trial judge expected near the end of November and decision from the Hawaii Supreme Court expected, following appeals, in early 1998. Cheryl Wetzstein, "Senate takes up gay 'marriage' as Hawaii court case resumes," Wash. Times, September 4, 1996, at A3.

19 Cox, Choice-of-Law, supra note 12, at 1070, n. 217.

20 Id. at 1070, n. 216.

21 Those states are Alaska, Arizona, Delaware, Georgia, Idaho, Illinois, Kansas, Michigan, Missouri, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, and Utah.

22 Those states are Alabama, California, Colorado, Florida, Hawaii, Iowa, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, New Mexico, New York, Rhode Island, Virginia, Washington, West


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 203

Virginia, Wisconsin, and Wyoming.

23 Those states are New Jersey and Pennsylvania.

24 Tennessee Code Ann. 36-3-113.

25 1996 Alaska Sess. Laws 21.

26 Georgia Code Ann. 19-3-3.1 which was enacted by 1996 Ga. Laws p. 1025, 1.

27 Idaho changed its marriage validation statute to prohibit recognition of marriages by same-sex couples only. The amended statute reads as follows: "Idaho Code 32-209. RECOGNITION OF FOREIGN OR OUT-OF-STATE MARRIAGES. All marriages contracted without this

state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state." This statute, which had been in effect since 1867, was amended by 1996 Idaho Sess. Laws ch. 331, 1.

28 Kansas enacted a slightly different type of bill. Senate Bill 515 amended Kansas Stat. Ann. 23-101 (1996) to read: "The marriage contract is to be considered in law as a civil contract between two parties who are of the opposite sex. ALL OTHER MARRIAGES ARE DECLARED TO BE CONTRARY TO THE PUBLIC POLICY OF THIS STATE AND ARE VOID...." The same bill amended K.S.A. 23-115 to read: "All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places in this state. IT IS THE STRONG PUBLIC POLICY OF THIS STATE ONLY TO RECOGNIZE AS VALID MARRIAGES FROM OTHER STATES THAT ARE BETWEEN A MAN AND A WOMAN." (Amended language is in capitals.)

29 Louisiana's statute states: "Persons of the same sex may not contract marriage with each other." La. Civ.Code Ann. art 89 (West 1996). The revision comments state: "(c) A purported marriage between persons of the same sex is not an impediment to either party's subsequent marriage to another person."

30 Michigan amended its marriage validation statute, Michigan Comp. Laws 551.271 (1996), which recognizes marriages contracted by "a man and a woman" who are Michigan residents outside the state as having the same effect as marriages contracted inside the state, except that "(2) This section does not apply to a marriage contracted between individuals of the same sex, which marriage is invalid in this state...." Section 2 of the Bill adds "This state recognizes marriage as inherently a unique relationship between

a man and a woman,...and therefore a marriage that is not between a man and a woman is invalid in this state regardless of whether the marriage is contracted according to the laws of another jurisdiction." These amendments were added by 1996 Mich. Pub. Acts 334.

31 Missouri had a difficult time passing an anti-same-sex marriage bill. Although 5 bills denying recognition were introduced into the Missouri General Assembly in 1996, none of them passed both houses. What was passed was an amendment to Senate Bill 768, which included "Section 6. It is the public policy of this state to recognize marriages only between a man and a woman."

33 1996 S.D. Laws. 161 amended S.D. Codified Laws Ann. 25-1-1 to read: "Marriage is a personal relation, BETWEEN A MAN AND A WOMAN, arising out of a civil contract to which the consent of parties capable of making it is necessary." (Changes are in capitals).

34 Utah was the first state to pass an anti-recognition bill. It did so by amending its validation statute, Utah Code Ann. 30-1-4 (1995) to read: "Validity of foreign marriages - Exceptions. A marriage solemnized in any other country, state, or territory, if valid where solemnized, is valid here, unless it is a marriage that: (1) would be prohibited and declared void in this state, under Subsection 30-1-2(1), (3), or (5); or (2) would violate Section 30-1- because the parties are related to each other within and including three degrees of consanguinity." Subsection 30-1-2(5) states a marriage is prohibited or void if "the parties are of the same sex." Senate Bill 1038 amended Arizona's statutes to add section C to Ariz. Rev. Stat. Ann. 25-101. Void and prohibited marriages. C. MARRIAGE BETWEEN PERSONS OF THE SAME SEX IS PROHIBITED. It also amended Ariz. Rev. Stat. Ann 25-112. Marriages contracted in another state; validity and effect to read: "A. Marriages valid by the laws of the place where contracted are

valid in this state, EXCEPT MARRIAGES WHICH ARE VOID OR PROHIBITED UNDER SECTION 25-101" and "B. Marriages solemnized in another state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state, EXCEPT MARRIAGES WHICH ARE VOID OR PROHIBITED UNDER SECTION 25-101." (Amendments are in capitals.)


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 204

35 Delaware made similar changes as Arizona. It amended Del. Code Ann. tit. 13, 101(a), which lists void and voidable marriages

as certain incestuous marriages, by adding "persons of the same gender" to the list of those that are void. Then it amended Del. Code Ann. tit. 13, 101 to add subsection (d) which reads: "(d) A marriage obtained or recognized outside the State of Delaware between persons prohibited by subsection (a) of this Section shall not constitute a legal or valid marriage within the State of Delaware."

36 Illinois also amended its section on prohibited marriages, Ill. Rev. Stat. ch. 750, para. 5/212, by adding a new subsection to the list of prohibited marriages: "(5) a marriage between 2 individuals of the same sex." 1996 Ill. Laws 89-459.

37 116 S.Ct. at 1624.

38 Id.

39 Id. at 1625.

40 Id. at 1626.

41 Id.

42 Id. at 1626-27.

43 Just recently, I was questioned at a presentation I gave about why, if marriages that are underage, incestuous, and bigamous or

polygamous/polyandrous are prohibited, marriages between same-sex couples could not also be prohibited constitutionally. Much of the reason goes to the anti-gay animus discussed later in this essay. In contrast, underage marriages are prohibited because of the state's fear that consent to be married may be lacking if the persons are too young to understand the commitment and relationship they are entering. Incestuous marriages are prohibited because of concerns about improper power relationships within families, concerns about consent, and concerns about the health of the children of such marriages. Bigamous, polygamous, and polyandrous marriages are prohibited because of concerns about limiting marriage to two-person couples, and for these purposes, are the most susceptible to challenges similar to those by same-sex couples as having little basis except for claims of morality and tradition.

For an excellent discussion of whether this disability should be imposed, see Mark Strasser, Domestic Relations, Jurisprudence, and the Great Slumbering Baehr: On Definitional Preclusion, Equal Protection, and Fundamental Interests, 64 Fordham L. Rev. 921 (1995). Regardless of this, same-sex couples are the only ones who are prevented from marrying when they meet all the other restrictions imposed by any state and the reasons given for prohibiting these marriages do not meet the "rational relationship to a legitimate state interest" standard discussed infra.

44 It is beyond the scope of this essay to document the overwhelming consistency with which states have recognized out-of-state marriages as valid, even when to do so would violate that state's domestic marriage statutes. For a full-ranging discussion of how courts have recognized those marriages and not used a public policy exception to avoid recognition, see Cox, Public Policy Exception, supra note 12. Suffice it to say, that when combined with the previous non-prohibition of marriages

by same-sex couples, the speed in passing anti-recognition statutes immediately once it became possible for those marriages to exist, and the case law in most states recognizing marriages that would be invalid if entered into in-state as long as they were valid where celebrated, it becomes clear that these statutes likely have the same constitutional defect as Colorado's Amendment 2, due to their focus on one group, and one group alone.

45 852 P.2d at 59.

46 For a discussion of some of these "domestic partner benefits" denied to unmarried couples in long-term committed relationships, see Barbara J. Cox, Alternative Families: Obtaining Traditional Family Benefits Through Litigation, Legislation and Collective Bargaining, 2 Wis. Women's L.J. 1 (1986).

47 Cox, Choice-of-Law, supra note 12, at 1047-48.

48 Most, although not all, of those refusals involve marriages entered into by the forum state's domiciliaries out-of-state in an attempt to evade the domicile's statutes and usually in violation of that state's marriage evasion statutes. See e.g., Langham v.

Langham, 117 N.W. 787 (Wis. 1908)(Wisconsin couple who traveled to Michigan to avoid Wisconsin statutory prohibition of remarriage within one year of divorce not validly married); In re Canon's Estate, 266 N.W. 918 (Wis. 1936)(marriage void when entered into outside Wisconsin to avoid statutory prohibition against epileptics marrying); First National Bank in Grand Forks v. North Dakota


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 205

Workmen's Compensation Bureau, 68 N.W.2d 661 (N.D. 1955)(marriage invalid when entered into in Minnesota to avoid North Dakota statute barring marriage due to mental incompetence); Whelan v. Whelan, 105 N.E.2d 314 (Ill. App. 1952)(marriage of first cousins valid in Indiana void in Illinois where such marriages are prohibited); Bucca v. State, 128 A.2d 508 (N.J. Ch. 1957)(uncle/niece marriage valid in Italy void in New Jersey for violating statute prohibiting incestuous marriage); and Wilkins v. Zelichowski, 140 A.2d 65 (N.J. 1958)(underage marriage entered into in Indiana void for violating New Jersey consent statute).

49 See Cox, Choice-of-Law, supra note 12, at 1074-1078 and n. 262 discussing evasion statutes and listing evasion statutes, none of which include such broad negation of the marriage for any and all purposes.

50 For a discussion of determining one's marital status on an issue-by-issue basis, after considering the policies behind each particular incident of marriage, see id. at 1063 n.168.

51 706 S.W.2d 395 (Ark. 1986).

52 Id. at 396, citing Robert A. Leflar, American Conflicts Law 221 (3d ed. 1977). See also, Festerwald v. Burk, 98 A. 358 (Md. Ct. App. 1916), dismissed 248 U.S. 592 (1916)(upholding Rhode Island marriage between Jewish man and his niece); and Schofield v. Schofield, 51 Pa. Super. 564 1912)(upholding Delaware marriage between first cousins).

53 314 A.2d 255 (1974).

54 Id. at 257.

55 36 So.2d 140 (Miss. 1948).

56 Id. at 142.

57 188 P.2d 499 (Cal. Ct. App. 1948).

58 Id. at 502.

59 116 S.Ct at 1627.

60 A strong argument can be made that denying marriage to same-sex couples violates their fundamental right to marry, even though the Baehr court rejected that argument. See Cox, Choice-of-Law, supra note , at 1053-1062. Additionally, numerous commentators and cases have discussed whether gay men and lesbians should be recognized as falling within the "suspect" or "quasi-suspect" class

branch of Equal Protection jurisprudence. See the discussion between members of the Ninth Circuit on this issue in High Tech Gays v. Dense Industr. Sec. Clearance Office, 668 F. Supp. 1361, 1368-70 (N.D. Ca. 1987); 895 F.2d 563, 573-74 (9th Cir. 1990); and 909 F.2d 375, 376-78 (9th Cir. 1990)(dissent from denial of en banc petition); Cass R. Sunstein, Homosexuality and the Constitution, 70 Ind. L.J. 1 (1994); Note, The Constitutional Status of Sexual Orientation: Homosexality as a Supsect Classification, 98 Harv.

L. Rev. 1285 (1985). 61 116 S.Ct. at 1627.

62 Id.

63 Id. at 1628.

64 Id.

65 Id.

66 Id.

67 Id. at 1629.

68 Id.


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 206

69 Id.

70 See Village of Arlington Heights v. Metropolitan Housing Dev't Corp., 429 U.S. 252, 264-66 (1977).

71 See Cox, Choice-of-Law, supra note 12, at 1074-1080.

72 Eugene F. Scoles and Peter F. Hay, Conflict of Laws 453 (2d ed. 1992).

73 Andrew Koppleman, Same-Sex Marriage, Choice of Law, and Public Policy (forthcoming in Quinnipiac Law Review).

74 Hereinafter referred to as DOMA.

75 "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial proceedings of every other State." U.S. Const. Art. IV, sec. 1.

76 Section 1738C states: "No state, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship

between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship." P.L. 104-199, 2(a), 110 Stat. 2419 (1996).

77 1 U.S.C. 1 was amended by adding "s. 7 Definition of 'marriage' and 'spouse.' In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a

person of the opposite sex who is a husband or a wife." P.L. 104-199, 3(a), 110 Stat. 2419 (1996). 78 For an excellent discussion of the ways in which DOMA is based on anti-gay animus, see Mark Straasser, Loving the Romer Out for

Baehr: On Acts in Defense of Marriage and the Constitution (forthcoming). 79 See, e.g., Ryan-Walsh Stevedoring Co., Inc. V. Trainer, 601 F.2d 1306, 1313 (9th Cir. 1964)(in deciding whether a claimant is decedent's "wife," state law is dispositive because the federal law does not define the term); Yarborough v. United States, 341 F.2d 621, 623 (Ct. Cl. 1965)(Congress left determination of whether an employee was married up to individual state law); Huff v. Director, United States Office of Personnel Management, 40 F.3d 35, 36-7 (3rd Cir. 1994)(definition of "spouse" for Social Security Act benefits determined by reference to state law); and Lembecke v. United States, 181 F.2d 703, 706 (2d Cir. 1950)(definition of "widow" for Federal employee life insurance statute determined by reference to state law).

80 Ex parte Burrus, 136 U.S. 586, 593-94 (1890).

81 See, Strasser, supra note 78,where he analyses the statements of some of the bill's supporters, including Senator Nickles (142 Cong. Rec. S4851-02, S4871); Senator Coats (142 Cong. Rec. S4947-03)(5/9/96); Representatives McInnis and Largent (142 Cong. Rec. H7270-4)(7/11/96).

82 For example, Senator Coats stated during Congressional debates on DOMA: "The definition of marriage is not created by politicians and judges, and it cannot be changed by them. It is rooted in our history, our laws, our deepest moral and religious convictions, and our nature as human being. It is the union of one man and one woman." 142 Cong. Rec. S4947-03 (5/9/96). This use of tradition to support DOMA was echoed by Representatives McInnis and Largent. 142 Cong. Rec. H7270-04 (7/11/96). See also, Strasser,

supra note 78. 83 Tennessee Code Ann. 36-3-113(c).

84 See Cox, Choice-of-Law, supra note 12, at 1050-1051, citing Baehr, 852 P.2d at 63.

85 388 U.S. at 11.

86 A.B. 1982 proposed this addition to Cal. Civ. Code 308.5.

87 Cal. Civ. Code 308 provides: "All marriages contracted without the state, which would have been valid by the laws of the coun


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 207

try in which the same were contracted, are valid in this state." This statute was first passed in 1872 as Civ. Code 63 and has remained substantively the same to the present. Additionally, as early as 1875, California case law recognized out-of-state marriages that would have been invalid had they been entered into within the state. Pearson v. Pearson, 51 Cal. 120 (1875)(recognizing

interracial marriage entered into in Utah despite California laws nullifying such marriages). 88 54 P.143 (CA 1898).

89 Id. at 144.

90 Id.

91 Pearson v. Pearson, 51 Cal. 120 (1875).

92 McDonald v. McDonald, 58 P.2d 163 (1936).

93 Tatum v. Tatum, 241 F.2d 401 (1957); and Colbert v. Colbert, 169 P.2d 633 (1946).

94 Barrons v. United States, 191 F.2d 92 (1951).

95 In re Estate of Dalip Singh Bir, 188 P.2d 499 (1948).

96 Family Code 300 does not prohibit marriages by same-sex couples, but does indicate that "Marriage is a personal relation arising out of a civil contract between a man and a woman,...." Whether this statute would be interpreted as prohibitory is unknown.

97 388 U.S. 1 (1967).

Bowers v. Hardwick, Romer v. Evans, and the Meaning of Anti-Discrimination Legislation

Marc A. Fajer1

One of the most commonly posed questions about the Supreme Court's decision in Romer v. Evans2 involves its relationship to Bowers v. Hardwick.3 "If Bowers said it was constitutional to criminalize homosexual conduct," so the argument goes, "how can Evans, without even discussing Bowers, find unconstitutional the lesser step of simply prohibiting anti-discrimination provisions that protect homosexuals?" One response to this would be to try draw a distinction between homosexual status and conduct.4 However, Justice Scalia in his dissent contends that even if there is a coherent distinction between homosexual orientation and same-sex sexual behavior, Bowers resolves Evans:

[A]ssuming that . a person of homosexual `orientation' is someone who does not engage in homosexual conduct but merely has a tendency 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. 5

This essay will focus on this statement, rather than entering the status/conduct debate that has been ably addressed elsewhere.6 The essay will take issue with three premises of the statement: first, that denying access to legislative protection against discrimination is necessarily a lesser burden to bear than the criminalization of particular sexual acts; second, that the group burdened by Amendment 2 (the Colorado constitutional provision at issue) consists exclusively of those with a tendency to engage in same-sex sexual activity; and finally that the provisions barred by Amendment 2 bestow "special favor and


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 208

protection" on anyone. The connecting theme of the three discussions will be that Justice Scalia's dissent demonstrates fundamental misunderstandings of how anti-discrimination legislation works. By contrast, one of the strengths of Justice Kennedy's majority opinion is that it does understand civil rights legislation and the role it plays in American society.

I. In his dissent, Justice Scalia made use of what he referred to as the "greater-includes-the-lesser rationale"7 : that because under Bowers states can criminalize same-sex sexual behavior, states obviously can take the lesser step of merely prohibiting anti-discrimination protections based on sexual orientation.8 This argument has some surface appeal. After all, Bowers allows criminal sanctions, an extremely great intrusion by the state into people's lives. By contrast, Amendment 2 does not require any state activity aimed at gay men and lesbians; arguably its primary effect simply is to allow some private individuals to act in accordance with their own moral codes by refusing to do business with those they believe to be gay. The state is simply forbearing from interfering in those private decisions. Justice Scalia refers to this action by the state as "the smallest conceivable" degree of hostility toward "homosexual conduct."9 To him, , it obviously is a "lesser" burden than criminalizing sodomy.

The reality of gay peoples' lives belies this superficial logic. In practice, sodomy statutes are rarely enforced, but people often are denied access to jobs, housing, and public accomodations on account of their sexual orientation. More importantly, even if the statutes criminalizing same-sex sexual behavior represented a serious constraint on the lives of the lesbians and gay men who are subject to them, the assumption that these statutes necessarily represent a greater burden than Amendment 2 is unwarranted and insulting. In the face of sodomy statutes, people who wish to engage in same-sex sexual behavior can alter their sexual behavior to avoid any acts that the state specifically prohibits.10 This might be annoying and frustrating, but seems unlikely to wreck the lives of those so affected. By contrast, after Amendment 2, gay people can lose their jobs or their apartments on account of their sexual orientation. For most people, these losses would constitute much more serious disruptions of their lives. Moreover, although they can lobby the legislature to repeal the sodomy statute, under Amendment 2, gay people cannot lobby any legislative body to provide protections for their jobs and homes. This inability to access the political process with regard to the most basic aspects of life in society surely represents a much more significant burden for most people than foregoing particular sexual behaviors. 11

Underlying the "greater-includes-the-lesser rationale" is the standard non- gay assumption that lesbians and gay men are defined by obsessive sexuality.12 What sort of person would rather lose a job or an apartment than give up a particular sexual practice? The stereotypical "homosexual" whose life is consumed by sex. Indeed, Justice Scalia's opinion indicates that he has trouble conceiving of a lesbian or gay man who does not have sex. In his discussion of the possible existence of "individuals of homosexual `orientation' who do not engage in homosexual acts,"13 he says,

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 a either "a gay man" or "a lesbian."). 14

His apparent conclusion that these descriptions presumptively exclude people who do not have sex seems consistent with the logic of his argument.15 "Gay men" and "lesbians," necessarily engaging in "homosexual acts," would be burdened more by the prohibition of "the conduct that defines the class"16 then


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 209

by the exercise of this "smallest conceivable" degree of hostility from the state.

By contrast, the majority seems to recognize protections regarding jobs, housing, and public accomodations are very important. It spends a considerable part of its opinion describing the history and place of anti-discrimination laws in American law.17 It also recognizes that permanently restricting a group of people from getting help from the legislature to ensure access to these protections represents a large degree of hostility. The majority refers to Amendment 2 as creating a "sweeping and comprehensive" "change in legal status"18 and repeatedly refers to the anti-gay animus it saw as the basis for its enactment.19 The opinion implicitly rejects the "greater-includes-the-lesser rationale" by emphasizing the extent of the burden created by Amendment 2, thus dismissing the attempt to minimize the benefits anti-discrimination laws confer.

II. A second problematic assumption made by Justice Scalia is that the only people likely to be affected by Amendment 2 are those who either engage in homosexual conduct or who profess their own homosexuality. This in turn is based on the common misapprehension that the anti-discrimination laws operate by protecting members of particular groups. In fact, most anti-discrimination laws operate by prohibiting the use of certain characteristics as a basis for decision-making by employers, housing providers, etc.20 For example, a landlord does not violate the Fair Housing Act by refusing to rent to an African-American, but rather by refusing to rent to anyone on the basis of their race.21 Thus, although there are few cases on point, a decision made on the basis of incorrect beliefs about the victim's race or religion should be forbidden by the statutes.22 Firing someone because you incorrectly believe them to be Jewish ought to be illegal, even if the person is not a member of the "protected class" of Jews.

In his dissent, Justice Scalia argued, "under Bowers, Amendment 2 is unquestionably constitutional as applied to those who engage in homosexual conduct."23 However, a more correct version of his point would be that "Amendment 2 is unquestionably constitutional as applied to decisions based on the belief that the affected individual engages in homosexual conduct."24 But this correction in turn reveals a new issue. Employers and landlords are unlikely to have first hand information about the sexual behavior of employees and tenants. So what sort of persons trigger the belief that they engage in homosexual conduct? One obvious group is those who are open about their sexual orientation.25 A second is those who engage in cross-gender behavior, that is, who do not conform to traditional gender-role norms in their public behavior.

One of the most powerful stereotypes about gay people is that all homosexuals engage in cross-gender behavior and all those who engage in cross-gender behavior are homosexuals.26 In fact, studies show that these generalizations are wildly overbroad.27 Yet effeminate men and masculine women are likely to be among those most harmed by Amendment 2. If sexual orientation is an acceptable basis for decision-making by employers and landlords, many will be denied jobs and housing because of the belief that they are gay. It is hard to see how this result is mandated by Bowers. Although there is some overlap, the connection those who engage in same-sex sodomy and those who engage in public cross-gender behavior is surely not strong enough to support using the latter as a proxy for the former. Thus, when Justice Scalia focuses on protected classes rather than on the decision-making process, he obscures an important aspect of the operation of Amendment 2: it will allow employers and landlords to discriminate against a large group of people whom they have no legitimate reason to connect with the conduct Bowers allows the state to prohibit.28


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 210

III. Justice Scalia's focus on the victims rather than the decision-makers results in another problem with his analysis. He repeatedly refers to the anti- discrimination laws forbidden by Amendment 2 as creating "preferential treatment" or "special protections" of "homosexuals."29 What does this mean? Both he and the state of Colorado contrast anti-discrimination laws with "generally applicable laws,"30 suggesting that they believe the protections provided by anti-discrimination laws are "special" because they only apply to lesbians and gay men and not to other people. But this simply isn't true. Like most anti-discrimination provisions, the Colorado municipal ordinances affected by Amendment 2 prohibit all decisions based on sexual orientation in employment, housing, etc.31 Thus, they would protect a heterosexual employee from being fired by a gay employer because of perceived heterosexual orientation.

Of course, provisions preventing the use of particular characteristics are more likely to be invoked by people who are in the minority with regard to that particular characteristic. Thus, we would expect more lawsuits regarding race by people of color, more suits regarding religion by members of non-mainstream religions, and more suits regarding sexual orientation by people who are (or are perceived to be) gay, lesbian or bisexual. Banning these suits is likely to hurt the minority categories more; the Supreme Court has acknowledged as much in the context of race.32 But the fact that most race-based suits are brought by people of color does not change the fact that anti-discrimination provisions protect all citizens of all races. Sexual orientation anti-discrimination provisions are laws of general applicability in the sense that they protect all citizens, regardless of their sexual orientation, against any decision-making based on sexual orientation, treating alike decisions resting on the perception that the victim is gay and those resting on the perception that she is not.

Why then are sexual orientation anti-discrimination laws "special protections?" Could it be because the characteristic "sexual orientation" is not one already recognized by the Supreme Court as suspect? That is, could the argument be that giving statutory protection to a class not already constitutionally protected creates "special rights"? Justice Scalia himself apparently rejects that view. He argues that Amendment 2:

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......33

Thus, he apparently believes that even anti-discrimination laws focused on race are special protections.

The real meaning of his use of "special" becomes clear in the final section of the dissent, when he excoriates the majority for siding with academic elites in the "culture wars." He points out that a legal employer when hiring:

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


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 211

Association of American Law Schools requires all its member schools to exact from job interviewers: "assurance of the employer's willingness" to hire homosexuals. 34

Thus, to Justice Scalia, the "special protection" that "homosexuals" receive from anti-discrimination laws is the right to force employers (and landlords, hoteliers, etc.) not to take account of a trait that is likely to make some of them uncomfortable. Unlike snail-eaters, lucky "homosexuals" protected by anti- discrimination laws are free to flaunt their status without fear of retribution. Employers and landlords are not free to exercise their "right" to exclude people with whom they would prefer not to associate. Thus, anti-discrimination laws in general represent a barely-tolerable interference with associational rights at the best of times, and are not appropriate for a group like "homosexuals" who incur moral disapproval from many people.

Of course, this characterization of the position suggests the response: the point of anti-discrimination laws is to combat systematic prejudice and there is no evidence of systematic prejudice against snail-eaters. In the U.S., there is no cultural understanding that snail-eaters are unfit to perform certain jobs nor an understanding that eating snails tells you anything about a person's morals or character. Although on rare occasions, a person might lose a job over an indiscreetly gobbled mollusk, in general we have no reason to believe that the snail-eaters will be left jobless and homeless on account of their escargot habit. By contrast, many people operate in fear of being denied job and housing opportunities on account of their sexual orientation.

The majority in Evans sharply refutes Justice Scalia's characterization of anti-discrimination laws as "special protections." Section II of Justice Kennedy's opinion provides a history and defense of these laws that demonstrates that the majority does not see them as a barely-tolerable interference with the rights of employers, landlords and providers of public accomodations. The ringing peroration to the section demonstrates a comprehension of the role of anti- discrimination laws that may stand as the most important contribution of the decision:

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. 35

IV. In the end , thinking about how anti-discrimination laws work demonstrates that Bowers does not resolve Evans. Laws that prevent decision- making on the basis of a person's sexual orientation apply to everyone, not just to those who engage in same-sex sexual activity. Among those most likely to be affected by these laws are people who are gender non-conformists, a group with only a very mild correspondence to those who engage in "homosexual sodomy.". Moreover, given the importance of the kinds of transactions protected by anti- discrimination laws, Amendment 2 cannot fairly be characterized as a "lesser" burden necessarily pre-approved by Bowers. The state's ability to prohibit the choice of particular sexual practices does not implicitly sanction "exclusion from . ordinary civic life in a free society" for those people who might be presumed to prefer those practices.

1 Professor of Law, University of Miami School of Law. The author wishes to thank Ron Hauser for valuable research assistance and Mary Coombs, Martha Mahoney, Susan Stefan and James Wilets for


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 212

helpful comments on an earlier draft.

2 116 S.Ct. 1620 (1996). Following the lead of University of Denver Professor Julie Nice, I will refer to the case as Evans, to associate this remarkably gay-friendly case with the plaintiffs, who included gay and lesbian individuals and gay-friendly municipalities, rather than with Roy Romer, the governor of Colorado who chose to expend state resources taking the case to the U.S. Supreme Court.

3 478 U.S. 186 (1986). The concern about the arguable conflict between Bowers and Evans has been raised in op-ed pieces discussing the case, see, e.g., Mona Charen, Gay Rights Ruling Shows Legislative Side of High Court's Majority, Fresno Bee (May 28, 1996), at B5; Thomas L. Jipping, The Politically, not Judicially, Correct Court, Washington Times (May, 23, 1996), at A17, in Constitutional Law casebooks, see, e.g.,GEOFFREY R. STONE, LOUIS M. SEIDMAN, CASS R. SUNSTEIN & MARK V. TUSHNET, CONSTITUTIONAL LAW (3d ed.; 1996 Supp.) at 64; RONALD D. ROTUNDA, MODERN CONSTITUTIONAL LAW (4th ed. 1996 Supp.) at 87, and of course by Justice Scalia in dissent. See Evans, 116 S.Ct. at 1629 (Scalia, J. dissenting) (Arguing that Evans "contradicts" Bowers.)

4 This was one of the arguments made by the attorneys for respondents in the case. See Evans, 116 S.Ct. at 1632 (Scalia, J. dissenting).

5 Id.

6 See, e.g., Janet E. Halley, The Politics of the Closet: Toward Equal Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. Rev 915 (1989)

7 Evans, 116 S.Ct. at 1632 (Scalia, J. dissenting).

8 See id. at 1631-32.

9 Id. at 1633.

10 The affected individuals also presumably can travel to one of the many jurisdictions without a sodomy statute if their need to indulge in prohibited activity becomes overpowering.

11 In addition, people who know an openly gay person are more likely to favor civil rights protections for lesbians and gay men. Amendment 2, by discouraging people from coming out in public settings like the workplace, thus has the additional effect of hindering an effective form of political action that makes further gay civil rights gains possible.

12 See Marc A. Fajer, Can Two Real Men Eat Quiche Together? Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men, 46 U. Miami L. Rev. 511, 537-46 (1992).

13 Evans, 116 S.Ct. at 1633 (Scalia, J. dissenting).

14 Id.

15 This is not the only misunderstanding of gay lives exhibited in the dissent. Elsewhere, Justice Scalia treats as equivalent the "`life partner' of a homosexual" and the "long time roommate of a nonhomosexual." Id. at 1630. This parallel entirely negates any connections of love, care, support and sharing that might be expected to distinguish a "life partner" from a "long time roommate." This also is consistent with the common non-gay presumption that gay relationships consist of sex rather than love and support. See Fajer, supra note 12, at 538-40.

16 See Evans, 116 S.Ct. at 1631, quoting Padula v. Webster, 822 F.2d 97, 103 (1987). The idea that sodomy is the defining characteristic of gay people is echoed by Ronald Rotunda, who place the Evans case in his textbook under the heading "Consensual Sodomy." RONALD D. ROTUNDA, MODERN CONSTITUTIONAL LAW (4th ed. 1996 Supp.) at 76. One wonders whether under the same reasoning, the cases involving the treatment of

marriage under the Equal Protection Clause should fall under the


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 213

heading, "State-Sanctioned Intercourse."

17 See Evans, 116 S.Ct. at 1625-26.

18 See id. at 1625.

19 See id. at 1628-29.

20 See id. at 1626 (anti-discrimination laws "set forth an extensive catalogue of traits which cannot be the basis for discrimination")

21 See 42 U.S.C. 3604(a) (unlawful "to refuse to sell or rent ... or to refuse to negotiate for the sale or rental of, or otherwise make unvailable or deny, a dwelling to any person because of race ...") (emphasis added).

22 See Perkins v. Lake County Dept. of Utilities, 862 F. Supp. 1262, 1277 (N.D. Ohio 1994) (plaintiff entitled to Title VII protection if employer reasonably believed him to be member of a protected classk, regardless of actual ancestry). The anti-discrimination protections for the disabled explicitly prohibit differential treatment on the basis of perceived "handicap." See, e.g., 42 U.S.C. 3602(h); 3604(f). In addition, in one housing case, the Sixth Circuit held that the defendant need not actually have known that the plaintiffs wer members of the protected class; a mere suspicion would have been enough. Sanders v. Dorris, 873 F.2d 938, 942 (6th Cir. 1989). If it is illegal to deny a housing opportunity to people because of a correct suspicion that they are African-Americans, it is hard to see why the same action would be legal if the suspicion proved unfounded.

23 Evans, 116 S.Ct. at 1632-33 (Scalia, J. dissenting).

24 At least one federal case already has involved a refusal to hire based on an erroneous belief that the applicant was gay. See Jantz v. Muci, , (D.Kan. 1991), rev'd 976 F.2d 623 (10th Cir. 1992), cert. denied, 508 U.S. 952 (1993).

25 As noted in the introduction, the question of whether it is reasonable to assume that someone engages in "homosexual conduct" from their statements about their sexual orientation is beyond the scope of this essay.

26 See Fajer, supra note 12, at 607-11.

27 See id. at 611-14 (collecting sources).

28 A related effect of eliminating employment discrimination protection for sexual orientation is likely to arise from the relation between sexual orientation and cross-gender behavior. Employers who wish to discriminate on the basis of lack of adherence to gender norms currently may be accused of sex discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228, 237, 251 (1989). Without sexual orientation protections, these employers might simply accuse the relevant employee of being a lesbian, a category that they would be allowed to use as a ground for termination. See Smith v. Liberty Mutual Ins. Co., 395 F. Supp. 1098 (N.D. Ga. 1975) (claim that Title VII prohibited discrimination against effeminate men rejected because discrimination based on affectional or sexual preference" is not covered by statute.") aff'd, 529 F.2d 325 (5th Cir. 1978).

29 See Evans, 116 S.Ct. at 1629 (Scalia, J. dissenting) ("preferential laws"); id. at 1630 ("special treatment"); id. at 1631, 1632, 1634 ("special protection"); id. at 1630, 1637 ("preferential treatment").

30 See id. at 1630.

31See Evans, 116 S.Ct. at 1623 (describing coverage of ordinances)

32 See Hunter v. Erickson, 393 U.S. 385, 391 (1969)


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 214

33 Evans, 116 S.Ct. at 1633 (Scalia, J. dissenting) (emphasis deleted).

34 Id. at 1637 (emphasis in original).

35 Evans, 116 S.Ct. at 1627.


National Journal of Sexual Orientation Law, Vol. 2, Issue 2
END PAGE 215



write the editor
back to our home page