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, Supervising Attorney, 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.
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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.
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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.
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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
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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
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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.
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