>Date: 23 Dec 93 18:39:43 EST >From: anon@queernet.org (Anonymous Sender) San Francisco Chronicle December 20, 1993 Open Forum (Op-Ed) The Limits of Law And Gay Rights David L. Kirp [David L. Kirp is professor of public policy at] [the University of California at Berkeley.] When Judge Jeffrey Bayless tossed out a Colorado initiative last week known as Amendment 2 and opposing gay rights, he reached the right legal result. The measure had effectively, and unconstitutionally, enshrined homophobia as that state's legal credo. After Amendment 2 passed last year, any group in Colorado could ask the government for protection against victimization - any group, that is except gay men and lesbians. While the measure's language is not so nasty as an Oregon ballot proposition that defined homosexuality as "abnormal and unnatural," its impact was identical. The Colorado initiative banished gays to the political gulag, taking away the core constitutional right to petition lawmakers for protection against bigotry. This violates both "the fundamental right of an identifiable group to participate in the political process" and the constitutional principle of equal protection, Judge Bayless ruled. "All that is lacking," as another judge wrote in a similar case, "is a sack of stones for throwing." Yet it's much too soon for the civil liberties-minded to be popping champagne corks. Even thought the Colorado decision carries all the trappings of law, it won't be the last legal word on the matter. Nor will any court, even the U.S. Supreme Court, have the last word in this protracted - and ultimately political battle. The legal decision barely marks the end of the beginning of the fight over gay rights. An appeal to that state's high court is a certainty; since that court has already ruled once against Amendment 2, it is likely to do so again. But a similar case is being heard in Cincinnati, one of three cities which just last month voted for a Colorado-type ordinance. One of these cases eventually will make its way to the Supreme Court, since constitutional guarantees are at stake. But how the court will respond is anyone's guess. In the infamous case of Bowers vs. Hardwick, decided less than a decade ago - the only case concerning homosexuality ever heard by the Supreme Court - a 5-to-4 majority upheld a Georgia gay man's conviction for the "crime" of having sex with another man in the privacy of his own bedroom. The opinion of then Chief Justice Warren Burger was as ugly in its tone as the normally temperate justices get. "Condemnation of these practices is firmly rooted in Judeo-Christian moral and ethical standards ... To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching." Of course, the facts of the Colorado case are very different - political participation, not sexual freedom, is what's at issue - and the composition of the court also has changed, though not entirely for the better. If Las Vegas book-makers were giving odds on what the justices will do, they'd be no better than even money. But crucially, this is not just a fight to be settled in court. It was the voters, after all, who passed Amendment 2, as well as look-alike measures in Cincinnati and elsewhere. Now right-wing religious groups have targeted half a dozen states for anti-gay ballot measures. In Florida, where the campaign is well under way, the initiative looks like a sure thing. "Damn the torpedoes!" say one of the campaign's organizers, the Rev. Lou Sheldon of the Family Values Coalition, "Full speed ahead!" The lawyers can keep these measures bottled up in the courts for years, and if the Supreme Court listens to reason, they will win a famous victory. But as the advocates for another controversial cause, the right to abortion, have learned, judicial protection goes only so far in guaranteeing personal liberty. The fight over gay rights is ultimately not a battle about legal precedents, but about the meaning of tolerance and fair-mindedness in America. ===== Gay-Bashing, Democracy-Bashing editorial, New York Times, Sat, 18 Dec 1993 Most of the anti-gay-rights voter initiatives now circulating in a dozen states seek to drive a whole class of citizens, homosexuals, from access to political protection. Though peddled as democratic measures, they are profoundly undemocratic. They not only repeal existing gay rights laws; they ban the passage of any laws, state or local, that might somehow benefit homosexuals and lesbians. Fortunately, courts are starting to pierce the majoritarian veneer. In Denver, a judge has just made permanent an injunction against enforcing Colorado's 1992 referendum that carried the innocent title, "No protected status based on homosexual, lesbian or bisexual orientation." That amendment to the State Constitution not only repealed gay rights ordinances in three cities; it barred the state and every locality from enacting any law that might let homosexuals or lesbians claim discrimination. In other words, as the state's highest court recognized in July, the measure singled out certain citizens and denied their right to participate in the political process. Other citizens have every political right to pursue their own interest and to persuade the Legislature to provide them with fair -- or even special -- treatment. Defending the referendum, State Attorney General Gale Norton denied the disfranchisement charge. She said the plaintiffs, including the cities of Denver, Boulder and Aspen, "are still perfectly free to agree or disagree" with the constitutional change "and to work for or against its repeal." But the U.S. Supreme Court has punctured similar arguments in the past, saying particular groups should not have the special burden of re-amending their state constitutions in order to lobby for their interests. Colorado's other arguments also mock its democratic pretensions. The state contended it had a compelling interest in reducing "factionalism" and political strife through the amendment. But Judge Jeffrey Bayless of the Denver District Court had a simple answer: America's whole history and the First Amendment forbid shutting down one side of a debate. With threadbare arguments like these, it is no wonder that judges are striking down such ballot proposals, sometimes even before they go to the voters. While anti-gay groups say they simply oppose special class treatment for homosexuals, the proposals themselves would create a special class for political oblivion. These measures are not only homophobic ; they attack the core of American democracy by denying the right of gay and lesbian Americans to share in the nation's politics.