Subject: WHOLE COLORADO RULING IN ONE FILE (U.S. Supreme Court)
From: [email-masked] (Rex Wockner)
Date: Fri, 7 Jun 1996 12:14:38 -0700 (PDT)

Subject: WHOLE COLORADO RULING IN ONE FILE

Subject: Wockner Newsclips #762: TODAY'S SUPREME COURT RULING: PART 1 OF 
3 -- THE SYLLABUS

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is
issued. The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader. See United States v. Detroit Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES

Syllabus

ROMER, GOVERNOR OF COLORADO, et al. v.
EVANS et al.
certiorari to the supreme court of colorado
No. 94-1039.   Argued October 10, 1995-Decided May 20, 1996

After various Colorado municipalities passed ordinances banning
 discrimination based on sexual orientation in housing, employment,
 education, public accommodations, health and welfare services, and
 other transactions and activities, Colorado voters adopted by state-
 wide referendum -Amendment 2- to the State Constitution, which
 precludes all legislative, executive, or judicial action at any level of
 state or local government designed to protect the status of persons
 based on their ``homosexual, lesbian or bisexual orientation, conduct,
 practices or relationships.''  Respondents, who include aggrieved
 homosexuals and municipalities, commenced this litigation in state
 court against petitioner state parties to declare Amendment 2
 invalid and enjoin its enforcement.  The trial court's grant of a pre-
 liminary injunction was sustained by the Colorado Supreme Court,
 which held that Amendment 2 was subject to strict scrutiny under
 the Equal Protection Clause of the Fourteenth Amendment because
 it infringed the fundamental right of gays and lesbians to partici-
 pate in the political process.  On remand, the trial court found that
 the Amendment failed to satisfy strict scrutiny.  It enjoined Amend-
 ment 2's enforcement, and the State Supreme Court affirmed.
Held:  Amendment 2 violates the Equal Protection Clause.  Pp. 4-14.
  (a) The State's principal argument that Amendment 2 puts gays
and lesbians in the same position as all other persons by denying
them special rights is rejected as implausible.  The extent of the
change in legal status effected by this law is evident from the
authoritative construction of Colorado's Supreme Court-which
establishes that the amendment's immediate effect is to repeal all
existing statutes, regulations, ordinances, and policies of state and
local entities barring discrimination based on sexual orientation, and
that its ultimate effect is to prohibit any governmental entity from
adopting similar, or more protective, measures in the future absent
state constitutional amendment-and from a review of the terms,
structure, and operation of the ordinances that would be repealsed
and prohibited by Amendment 2.  Even if, as the State contends,
homosexuals can find protection in laws and policies of general
application, Amendment 2 goes well beyond merely depriving them
of special rights.  It imposes a broad disability upon those persons
alone, forbidding them, but no others, to seek specific legal protec-
tion from injuries caused by discrimination in a wide range of public
and private transactions.  Pp. 4-9.
  (b) In order to reconcile the Fourteenth Amendment's promise that
no person shall be denied equal protection with the practical reality
that most legislation classifies for one purpose or another, the Court
has stated that it will uphold a law that neither burdens a funda-
mental right nor targets a suspect class so long as the legislative
classification bears a rational relation to some independent and
legitimate legislative end.  See, e.g., Heller v. Doe, 509 U. S. 312,
319-320.  Amendment 2 fails, indeed defies, even this conventional
inquiry.  First, the amendment is at once too narrow and too broad,
identifying persons by a single trait and then denying them the
possibility of protection across the board.  This disqualification of a
class of persons from the right to obtain specific protection from the
law is unprecedented and is itself a denial of equal protection in the
most literal sense.  Second, the sheer breadth of Amendment 2,
which makes a general announcement that gays and lesbians shall
not have any particular protections from the law, is so far removed
from the reasons offered for it, i.e., respect for other citizens' free-
dom of association, particularly landlords or employers who have
personal or religious objections to homosexuality, and the State's
interest in conserving resources to fight discrimination against other
groups, that the amendment cannot be explained by reference to
those reasons; the Amendment raises the inevitable inference that
it is born of animosity toward the class that it affects.  Amendment
2 cannot be said to be directed to an identifiable legitimate purpose
or discrete objective.  It is a status-based classification of persons
undertaken for its own sake, something the Equal Protection Clause
does not permit.  Pp. 9-14.
882 P. 2d 1335, affirmed.
 Kennedy, J., delivered the opinion of the Court, in which Stevens,
O'Connor, Souter, Ginsburg, and Breyer, JJ., joined.  Scalia, J.,
filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J.,
joined.

(parts 2 and 3 follow--the opinion and the dissent)

Subject: Wockner Newsclips #763: TODAY'S SUPREME COURT RULING: PART 2 OF 3: 
THE OPINION

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES

--------
No. 94-1039
--------

ROY ROMER, GOVERNOR OF COLORADO, et al.,
PETITIONERS v. RICHARD G. EVANS et al.
on writ of certiorari to the supreme court
of Colorado
[May 20, 1996]

  Justice Kennedy delivered the opinion of the Court.

  One century ago, the first Justice Harlan admonished
this Court that the Constitution -neither knows nor
tolerates classes among citizens.-  Plessy v. Ferguson, 163
U. S. 537, 559 (1896) (dissenting opinion).  Unheeded
then, those words now are understood to state a commit-
ment to the law's neutrality where the rights of persons
are at stake.  The Equal Protection Clause enforces this
principle and today requires us to hold invalid a provi-
sion of Colorado's Constitution.

                      I
  The enactment challenged in this case is an amend-
ment to the Constitution of the State of Colorado,
adopted in a 1992 statewide referendum.  The parties
and the state courts refer to it as -Amendment 2,- its
designation when submitted to the voters.  The impetus
for the amendment and the contentious campaign that
preceded its adoption came in large part from ordinances
that had been passed in various Colorado municipalities.
For example, the cities of Aspen and Boulder and the
City and County of Denver each had enacted ordinances
which banned discrimination in many transactions and
activities, including housing, employment, education,
public accommodations, and health and welfare services.
Denver Rev. Municipal Code, Art. IV 28-91 to 28-116
(1991); Aspen Municipal Code 13-98 (1977); Boulder
Rev. Code 12-1-1 to 12-1-11 (1987).  What gave rise
to the statewide controversy was the protection the
ordinances afforded to persons discriminated against by
reason of their sexual orientation.  See Boulder Rev.
Code 12-1-1 (defining -sexual orientation- as -the
choice of sexual partners, i.e., bisexual, homosexual or
heterosexual-); Denver Rev. Municipal Code, Art. IV
28-92 (defining -sexual orientation- as -[t]he status of
an individual as to his or her heterosexuality, homo-
sexuality or bisexuality-).  Amendment 2 repeals these
ordinances to the extent they prohibit discrimination on
the basis of -homosexual, lesbian or bisexual orientation,
conduct, practices or relationships.-  Colo. Const., Art. II,
30b.
  Yet Amendment 2, in explicit terms, does more than
repeal or rescind these provisions.  It prohibits all
legislative, executive or judicial action at any level of
state or local government designed to protect the named
class, a class we shall refer to as homosexual persons or
gays and lesbians.  The amendment reads:

-No Protected Status Based on Homosexual, Lesbian,
or Bisexual Orientation.  Neither the State of
Colorado, through any of its branches or depart-
ments, nor any of its agencies, political subdivisions,
municipalities or school districts, shall enact, adopt
or enforce any statute, regulation, ordinance or
policy whereby homosexual, lesbian or bisexual
orientation, conduct, practices or relationships shall
constitute or otherwise be the basis of or entitle any
person or class of persons to have or claim any
minority status, quota preferences, protected status
or claim of discrimination.  This Section of the
Constitution shall be in all respects self-executing.-
Ibid.

  Soon after Amendment 2 was adopted, this litigation
to declare its invalidity and enjoin its enforcement was
commenced in the District Court for the City and
County of Denver.  Among the plaintiffs (respondents
here) were homosexual persons, some of them govern-
ment employees.  They alleged that enforcement of
Amendment 2 would subject them to immediate and
substantial risk of discrimination on the basis of their
sexual orientation.  Other plaintiffs (also respondents
here) included the three municipalities whose ordinances
we have cited and certain other governmental entities
which had acted earlier to protect homosexuals from
discrimination but would be prevented by Amendment 2
from continuing to do so.  Although Governor Romer had
been on record opposing the adoption of Amendment 2,
he was named in his official capacity as a defendant,
together with the Colorado Attorney General and the
State of Colorado.
  The trial court granted a preliminary injunction to
stay enforcement of Amendment 2, and an appeal was
taken to the Supreme Court of Colorado.  Sustaining the
interim injunction and remanding the case for further
proceedings, the State Supreme Court held that Amend-
ment 2 was subject to strict scrutiny under the Four-
teenth Amendment because it infringed the fundamental
right of gays and lesbians to participate in the political
process.  Evans v. Romer, 854 P. 2d 1270 (Colo. 1993)
(Evans I).  To reach this conclusion, the state court
relied on our voting rights cases, e.g., Reynolds v. Sims,
377 U. S. 533 (1964); Carrington v. Rash, 380 U. S. 89
(1965); Harper v. Virginia Bd. of Elections, 383 U. S.
663 (1966); Williams v. Rhodes, 393 U. S. 23 (1968), and
on our precedents involving discriminatory restructuring
of governmental decisionmaking, see, e.g., Hunter v.
Erickson, 393 U. S. 385 (1969); Reitman v. Mulkey, 387
U. S. 369 (1967); Washington v. Seattle School Dist. No.
1, 458 U. S. 457 (1982); Gordon v. Lance, 403 U. S. 1
(1971).  On remand, the State advanced various argu-
ments in an effort to show that Amendment 2 was
narrowly tailored to serve compelling interests, but the
trial court found none sufficient.  It enjoined enforce-
ment of Amendment 2, and the Supreme Court of
Colorado, in a second opinion, affirmed the ruling.
Evans v. Romer, 882 P. 2d 1335 (Colo. 1994) (Evans II).
We granted certiorari and now affirm the judgment, but
on a rationale different from that adopted by the State
Supreme Court.

                     II
  The State's principal argument in defense of Amend-
ment 2 is that it puts gays and lesbians in the same
position as all other persons.  So, the State says, the
measure does no more than deny homosexuals special
rights.  This reading of the amendment's language is
implausible.  We rely not upon our own interpretation
of the amendment but upon the authoritative construc-
tion of Colorado's Supreme Court.  The state court,
deeming it unnecessary to determine the full extent of
the amendment's reach, found it invalid even on a
modest reading of its implications.  The critical discus-
sion of the amendment, set out in Evans I, is as follows:
     -The immediate objective of Amendment 2 is, at a
minimum, to repeal existing statutes, regulations,
ordinances, and policies of state and local entities
that barred discrimination based on sexual orienta-
tion.  See Aspen, Colo., Mun. Code 13-98 (1977)
(prohibiting discrimination in employment, housing
and public accommodations on the basis of sexual
orientation); Boulder, Colo., Rev. Code 12-1-2 to
-4 (1987) (same); Denver, Colo., Rev. Mun. Code art.
IV, 28-91 to -116 (1991) (same); Executive Order
No. D0035 (December 10, 1990) (prohibiting employ-
ment discrimination for `all state employees, classi-
fied and exempt' on the basis of sexual orientation);
Colorado Insurance Code, 10-3-1104, 4A C. R. S.
(1992 Supp.) (forbidding health insurance providers
from determining insurability and premiums based
on an applicant's, a beneficiary's, or an insured's
sexual orientation); and various provisions prohibit-
ing discrimination based on sexual orientation at
state colleges.26
     -26Metropolitan State College of Denver prohibits college
sponsored social clubs from discriminating in membership on
the basis of sexual orientation and Colorado State University
has an antidiscrimination policy which encompasses sexual
orientation.
     -The `ultimate effect' of Amendment 2 is to pro-
hibit any governmental entity from adopting similar,
or more protective statutes, regulations, ordinances,
or policies in the future unless the state constitution
is first amended to permit such measures.-  854
P. 2d, at 1284-1285, and n. 26.
  Sweeping and comprehensive is the change in legal
status effected by this law.  So much is evident from the
ordinances that the Colorado Supreme Court declared
would be void by operation of Amendment 2.  Homosexu-
als, by state decree, are put in a solitary class with
respect to transactions and relations in both the private
and governmental spheres.  The amendment withdraws
from homosexuals, but no others, specific legal protection
from the injuries caused by discrimination, and it forbids
reinstatement of these laws and policies.
  The change that Amendment 2 works in the legal
status of gays and lesbians in the private sphere is far-
reaching, both on its own terms and when considered in
light of the structure and operation of modern anti-
discrimination laws.  That structure is well illustrated
by contemporary statutes and ordinances prohibiting
discrimination by providers of public accommodations.
-At common law, innkeepers, smiths, and others who
`made profession of a public employment,' were pro-
hibited from refusing, without good reason, to serve a
customer.-  Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, Inc., 515 U. S. ___, ___ (1995)
(slip op., at 13).  The duty was a general one and did
not specify protection for particular groups.  The com-
mon law rules, however, proved insufficient in many
instances, and it was settled early that the Fourteenth
Amendment did not give Congress a general power to
prohibit discrimination in public accommodations, Civil
Rights Cases, 109 U. S. 3, 25 (1883).  In consequence,
most States have chosen to counter discrimination by
enacting detailed statutory schemes.  See, e.g., S. D.
Codified Laws 20-13-10, 20-13-22, 20-13-23 (1995);
Iowa Code 216.6-216.8 (1994); Okla. Stat., Tit. 25,
1302, 1402 (1987); 43 Pa. Cons. Stat. 953, 955
(Supp. 1995); N. J. Stat. Ann. 10:5-3, 10:5-4 (West
Supp. 1995); N. H. Rev. Stat. Ann. 354-A:7, 354-A:10,
354-A:17 (1995); Minn. Stat. 363.03 (1991 and Supp.
1995).
  Colorado's state and municipal laws typify this emerg-
ing tradition of statutory protection and follow a consis-
tent pattern.  The laws first enumerate the persons or
entities subject to a duty not to discriminate.  The list
goes well beyond the entities covered by the common
law.  The Boulder ordinance, for example, has a compre-
hensive definition of entities deemed places of -public
accommodation.-  They include -any place of business
engaged in any sales to the general public and any place
that offers services, facilities, privileges, or advantages
to the general public or that receives financial support
through solicitation of the general public or through
governmental subsidy of any kind.-  Boulder Rev. Code
12-1-1(j) (1987).  The Denver ordinance is of similar
breadth, applying, for example, to hotels, restaurants,
hospitals, dental clinics, theaters, banks, common
carriers, travel and insurance agencies, and -shops and
stores dealing with goods or services of any kind,-
Denver Rev. Municipal Code, Art. IV, 28-92.
  These statutes and ordinances also depart from the
common law by enumerating the groups or persons
within their ambit of protection.  Enumeration is the
essential device used to make the duty not to discrimi-
nate concrete and to provide guidance for those who
must comply.  In following this approach, Colorado's
state and local governments have not limited anti-
discrimination laws to groups that have so far been
given the protection of heightened equal protection
scrutiny under our cases.  See, e.g., J. E. B. v. Alabama
ex rel. T. B., 511 U. S. __, __ (1994) (slip op., at 8) (sex);
Lalli v. Lalli, 439 U. S. 259, 265 (1978) (illegitimacy);
McLaughlin v. Florida, 379 U. S. 184, 191-192 (1964)
(race); Oyama v. California, 332 U. S. 633 (1948) (ances-
try).  Rather, they set forth an extensive catalogue of
traits which cannot be the basis for discrimination,
including age, military status, marital status, pregnancy,
parenthood, custody of a minor child, political affiliation,
physical or mental disability of an individual or of his
or her associates--and, in recent times, sexual orienta-
tion.  Aspen Municipal Code 13-98(a)(1) (1977); Boulder
Rev. Code 12-1-1 to 12-1-4 (1987); Denver Rev. Mu-
nicipal Code, Art. IV, 28-92 to 28-119 (1991); Colo.
Rev. Stat. 24-34-401 to 24-34-707 (1988 and Supp.
1995).
  Amendment 2 bars homosexuals from securing protec-
tion against the injuries that these public-accommoda-
tions laws address.  That in itself is a severe conse-
quence, but there is more.  Amendment 2, in addition,
nullifies specific legal protections for this targeted class
in all transactions in housing, sale of real estate,
insurance, health and welfare services, private education,
and employment.  See, e.g., Aspen Municipal Code
13-98(b), (c) (1977); Boulder Rev. Code 12-1-2,
12-1-3 (1987); Denver Rev. Municipal Code, Art. IV
28-93 to 28-95, 28-97 (1991).
  Not confined to the private sphere, Amendment 2 also
operates to repeal and forbid all laws or policies provid-
ing specific protection for gays or lesbians from discrimi-
nation by every level of Colorado government.  The State
Supreme Court cited two examples of protections in the
governmental sphere that are now rescinded and may
not be reintroduced.  The first is Colorado Executive
Order D0035 (1990), which forbids employment discrimi-
nation against -`all state employees, classified and
exempt' on the basis of sexual orientation.-  854 P. 2d,
at 1284.  Also repealed, and now forbidden, are -various
provisions prohibiting discrimination based on sexual
orientation at state colleges.-  Id., at 1284, 1285.  The
repeal of these measures and the prohibition against
their future reenactment demonstrates that Amendment
2 has the same force and effect in Colorado's governmen-
tal sector as it does elsewhere and that it applies to
policies as well as ordinary legislation.
  Amendment 2's reach may not be limited to specific
laws passed for the benefit of gays and lesbians.  It is
a fair, if not necessary, inference from the broad
language of the amendment that it deprives gays and
lesbians even of the protection of general laws and
policies that prohibit arbitrary discrimination in govern-
mental and private settings.  See, e.g., Colo. Rev. Stat.
24-4-106(7) (1988) (agency action subject to judicial
review under arbitrary and capricious standard);
18-8-405 (making it a criminal offense for a public
servant knowingly, arbitrarily or capriciously to refrain
from performing a duty imposed on him by law);
10-3-1104(1)(f) (prohibiting -unfair discrimination- in
insurance); 4 Colo. Code of Regulations 801-1, Policy
11-1 (1983) (prohibiting discrimination in state employ-
ment on grounds of specified traits or -other non-merit
factor-).  At some point in the systematic administration
of these laws, an official must determine whether
homosexuality is an arbitrary and thus forbidden basis
for decision.  Yet a decision to that effect would itself
amount to a policy prohibiting discrimination on the
basis of homosexuality, and so would appear to be no
more valid under Amendment 2 than the specific
prohibitions against discrimination the state court held
invalid.
  If this consequence follows from Amendment 2, as its
broad language suggests, it would compound the consti-
tutional difficulties the law creates.  The state court did
not decide whether the amendment has this effect,
however, and neither need we.  In the course of reject-
ing the argument that Amendment 2 is intended to
conserve resources to fight discrimination against
suspect classes, the Colorado Supreme Court made the
limited observation that the amendment is not intended
to affect many anti-discrimination laws protecting non-
suspect classes, Romer II, 882 P. 2d at 1346, n. 9.  In
our view that does not resolve the issue.  In any event,
even if, as we doubt, homosexuals could find some safe
harbor in laws of general application, we cannot accept
the view that Amendment 2's prohibition on specific
legal protections does no more than deprive homosexuals
of special rights.  To the contrary, the amendment
imposes a special disability upon those persons alone.
Homosexuals are forbidden the safeguards that others
enjoy or may seek without constraint.  They can obtain
specific protection against discrimination only by enlist-
ing the citizenry of Colorado to amend the state consti-
tution or perhaps, on the State's view, by trying to pass
helpful laws of general applicability.  This is so no
matter how local or discrete the harm, no matter how
public and widespread the injury.  We find nothing
special in the protections Amendment 2 withholds.
These are protections taken for granted by most people
either because they already have them or do not need
them; these are protections against exclusion from an
almost limitless number of transactions and endeavors
that constitute ordinary civic life in a free society.

                     III
  The Fourteenth Amendment's promise that no person
shall be denied the equal protection of the laws must co-
exist with the practical necessity that most legislation
classifies for one purpose or another, with resulting
disadvantage to various groups or persons.  Personnel
Administrator of Mass. v. Feeney, 442 U. S. 256, 271-
272 (1979); F. S. Royster Guano Co. v. Virginia, 253
U. S. 412, 415 (1920).  We have attempted to reconcile
the principle with the reality by stating that, if a law
neither burdens a fundamental right nor targets a sus-
pect class, we will uphold the legislative classification so
long as it bears a rational relation to some legitimate
end.  See, e.g., Heller v. Doe, 509 U. S. ___, ___ (1993)
(slip op., at 6).
  Amendment 2 fails, indeed defies, even this conven-
tional inquiry.  First, the amendment has the peculiar
property of imposing a broad and undifferentiated
disability on a single named group, an exceptional and,
as we shall explain, invalid form of legislation.  Second,
its sheer breadth is so discontinuous with the reasons
offered for it that the amendment seems inexplicable by
anything but animus toward the class that it affects; it
lacks a rational relationship to legitimate state interests.
  Taking the first point, even in the ordinary equal
protection case calling for the most deferential of
standards, we insist on knowing the relation between
the classification adopted and the object to be attained.
The search for the link between classification and
objective gives substance to the Equal Protection Clause;
it provides guidance and discipline for the legislature,
which is entitled to know what sorts of laws it can pass;
and it marks the limits of our own authority.  In the
ordinary case, a law will be sustained if it can be said
to advance a legitimate government interest, even if the
law seems unwise or works to the disadvantage of a
particular group, or if the rationale for it seems tenuous.
See New Orleans v. Dukes, 427 U. S. 297 (1976) (tour-
ism benefits justified classification favoring pushcart
vendors of certain longevity); Williamson v. Lee Optical
of Okla., Inc., 348 U. S. 483 (1955) (assumed health
concerns justified law favoring optometrists over opti-
cians); Railway Express Agency, Inc. v. New York, 336
U. S. 106 (1949) (potential traffic hazards justified
exemption of vehicles advertising the owner's products
from general advertising ban); Kotch v. Board of River
Port Pilot Comm'rs for Port of New Orleans, 330 U. S.
552 (1947) (licensing scheme that disfavored persons
unrelated to current river boat pilots justified by
possible efficiency and safety benefits of a closely knit
pilotage system).  The laws challenged in the cases just
cited were narrow enough in scope and grounded in a
sufficient factual context for us to ascertain that there
existed some relation between the classification and the
purpose it served.  By requiring that the classification
bear a rational relationship to an independent and
legitimate legislative end, we ensure that classifications
are not drawn for the purpose of disadvantaging the
group burdened by the law.  See United States Railroad
Retirement Bd. v. Fritz, 449 U. S. 166, 181 (1980)
(Stevens, J., concurring) (-If the adverse impact on the
disfavored class is an apparent aim of the legislature, its
impartiality would be suspect.-).
  Amendment 2 confounds this normal process of judicial
review.  It is at once too narrow and too broad.  It
identifies persons by a single trait and then denies them
protection across the board.  The resulting disqualifica-
tion of a class of persons from the right to seek specific
protection from the law is unprecedented in our jurispru-
dence.  The absence of precedent for Amendment 2 is
itself instructive; -[d]iscriminations of an unusual
character especially suggest careful consideration to
determine whether they are obnoxious to the constitu-
tional provision.-  Louisville Gas & Elec. Co. v. Coleman,
277 U. S. 32, 37-38 (1928).
  It is not within our constitutional tradition to enact
laws of this sort.  Central both to the idea of the rule of
law and to our own Constitution's guarantee of equal
protection is the principle that government and each of
its parts remain open on impartial terms to all who seek
its assistance.  -`Equal protection of the laws is not
achieved through indiscriminate imposition of inequali-
ties.'-  Sweatt v. Painter, 339 U. S. 629, 635 (1950)
(quoting Shelley v. Kraemer, 334 U. S. 1, 22 (1948)).
Respect for this principle explains why laws singling out
a certain class of citizens for disfavored legal status or
general hardships are rare.  A law declaring that in
general it shall be more difficult for one group of
citizens than for all others to seek aid from the govern-
ment is itself a denial of equal protection of the laws in
the most literal sense.  -The guaranty of `equal protec-
tion of the laws is a pledge of the protection of equal
laws.'-  Skinner v. Oklahoma ex rel. Williamson, 316
U. S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118
U. S. 356, 369 (1886)).
  Davis v. Beason, 133 U. S. 333 (1890), not cited by the
parties but relied upon by the dissent, is not evidence
that Amendment 2 is within our constitutional tradition,
and any reliance upon it as authority for sustaining the
amendment is misplaced.  In Davis, the Court approved
an Idaho territorial statute denying Mormons, polyga-
mists, and advocates of polygamy the right to vote and
to hold office because, as the Court construed the
statute, it -simply excludes from the privilege of voting,
or of holding any office of honor, trust or profit, those
who have been convicted of certain offences, and those
who advocate a practical resistance to the laws of the
Territory and justify and approve the commission of
crimes forbidden by it.-  Id., at 347.  To the extent
Davis held that persons advocating a certain practice
may be denied the right to vote, it is no longer good
law.  Brandenburg v. Ohio, 395 U. S. 444 (1969) (per
curiam).  To the extent it held that the groups designat-
ed in the statute may be deprived of the right to vote
because of their status, its ruling could not stand
without surviving strict scrutiny, a most doubtful
outcome.  Dunn v. Blumstein, 405 U. S. 330, 337 (1972);
cf. United States v. Brown, 381 U. S. 437 (1965); United
States v. Robel, 389 U. S. 258 (1967).  To the extent
Davis held that a convicted felon may be denied the
right to vote, its holding is not implicated by our
decision and is unexceptionable.  See Richardson v.
Ramirez, 418 U. S. 24 (1974).
  A second and related point is that laws of the kind
now before us raise the inevitable inference that the
disadvantage imposed is born of animosity toward the
class of persons affected.  -[I]f the constitutional concep-
tion of `equal protection of the laws' means anything, it
must at the very least mean that a bare . . . desire to
harm a politically unpopular group cannot constitute a
legitimate governmental interest.-  Department of
Agriculture v. Moreno, 413 U. S. 528, 534 (1973).  Even
laws enacted for broad and ambitious purposes often can
be explained by reference to legitimate public policies
which justify the incidental disadvantages they impose
on certain persons.  Amendment 2, however, in making
a general announcement that gays and lesbians shall not
have any particular protections from the law, inflicts on
them immediate, continuing, and real injuries that
outrun and belie any legitimate justifications that may
be claimed for it.  We conclude that, in addition to the
far-reaching deficiencies of Amendment 2 that we have
noted, the principles it offends, in another sense, are
conventional and venerable; a law must bear a rational
relationship to a legitimate governmental purpose,
Kadrmas v. Dickinson Public Schools, 487 U. S. 450, 462
(1988), and Amendment 2 does not.
  The primary rationale the State offers for Amendment
2 is respect for other citizens' freedom of association,
and in particular the liberties of landlords or employers
who have personal or religious objections to homosexual-
ity.  Colorado also cites its interest in conserving
resources to fight discrimination against other groups.
The breadth of the Amendment is so far removed from
these particular justifications that we find it impossible
to credit them.  We cannot say that Amendment 2 is
directed to any identifiable legitimate purpose or discrete
objective.  It is a status-based enactment divorced from
any factual context from which we could discern a
relationship to legitimate state interests; it is a classifi-
cation of persons undertaken for its own sake, something
the Equal Protection Clause does not permit.  -[C]lass
legislation . . . [is] obnoxious to the prohibitions of the
Fourteenth Amendment . . . .-  Civil Rights Cases, 109
U. S., at 24.
  We must conclude that Amendment 2 classifies
homosexuals not to further a proper legislative end but
to make them unequal to everyone else.  This Colorado
cannot do.  A State cannot so deem a class of persons a
stranger to its laws.  Amendment 2 violates the Equal
Protection Clause, and the judgment of the Supreme
Court of Colorado is affirmed.

                            It is so ordered.

Subject: Wockner Newsclips #764: TODAY'S SUPREME COURT RULING: PART 3 OF 3: 
THE DISSENT

SUPREME COURT OF THE UNITED STATES
--------
No. 94-1039
--------
ROY ROMER, GOVERNOR OF COLORADO, et al.,
PETITIONERS v. RICHARD G. EVANS et al.
on writ of certiorari to the supreme court
of colorado
[May 20, 1996]

  Justice Scalia, with whom The Chief Justice and
Justice Thomas join, dissenting.

  The Court has mistaken a Kulturkampf for a fit of
spite.  The constitutional amendment before us here is
not the manifestation of a -`bare . . . desire to harm'-
homosexuals, ante, at 13, but is rather a modest attempt
by seemingly tolerant Coloradans to preserve traditional
sexual mores against the efforts of a politically powerful
minority to revise those mores through use of the laws.
That objective, and the means chosen to achieve it, are
not only unimpeachable under any constitutional
doctrine hitherto pronounced (hence the opinion's heavy
reliance upon principles of righteousness rather than
judicial holdings); they have been specifically approved
by the Congress of the United States and by this Court.
  In holding that homosexuality cannot be singled out
for disfavorable treatment, the Court contradicts a
decision, unchallenged here, pronounced only 10 years
ago, see Bowers v. Hardwick, 478 U. S. 186 (1986), and
places the prestige of this institution behind the proposi-
tion that opposition to homosexuality is as reprehensible
as racial or religious bias.  Whether it is or not is
precisely the cultural debate that gave rise to the
Colorado constitutional amendment (and to the preferen-
tial laws against which the amendment was directed).
Since the Constitution of the United States says nothing
about this subject, it is left to be resolved by normal
democratic means, including the democratic adoption of
provisions in state constitutions.  This Court has no
business imposing upon all Americans the resolution
favored by the elite class from which the Members of
this institution are selected, pronouncing that -animos-
ity- toward homosexuality, ante, at 13, is evil.  I vigor-
ously dissent.

                            I
  Let me first discuss Part II of the Court's opinion, its
longest section, which is devoted to rejecting the State's
arguments that Amendment 2 -puts gays and lesbians
in the same position as all other persons,- and -does no
more than deny homosexuals special rights,- ante, at 4.
The Court concludes that this reading of Amendment 2's
language is -implausible- under the -authoritative
construction- given Amendment 2 by the Supreme Court
of Colorado.  Ibid.
  In reaching this conclusion, the Court considers it
unnecessary to decide the validity of the State's argu-
ment that Amendment 2 does not deprive homosexuals
of the -protection [afforded by] general laws and policies
that prohibit arbitrary discrimination in governmental
and private settings.-  Ante, at 8.  I agree that we need
not resolve that dispute, because the Supreme Court of
Colorado has resolved it for us.  In Evans v. Romer, 882
P. 2d 1335 (1994), the Colorado court stated:
-[I]t is significant to note that Colorado law currently
proscribes discrimination against persons who are
not suspect classes, including discrimination based
on age, 24-34-402(1)(a), 10A C. R. S. (1994 Supp.);
marital or family status, 24-34-502(1)(a), 10A
C. R. S. (1994 Supp.); veterans' status, 28-3-506,
11B C. R. S. (1989); and for any legal, off-duty
conduct such as smoking tobacco, 24-34-402.5, 10A
C. R. S. (1994 Supp.).  Of course Amendment 2 is
not intended to have any effect on this legislation,
but seeks only to prevent the adoption of anti-
discrimination laws intended to protect gays, lesbians,
and bisexuals.-  Id., at 1346, n. 9 (emphasis added).
The Court utterly fails to distinguish this portion of
the Colorado court's opinion.  Colorado Rev. Stat.
24-34-402.5 (Supp. 1995), which this passage authori-
tatively declares not to be affected by Amendment 2,
was respondents' primary example of a generally
applicable law whose protections would be unavailable
to homosexuals under Amendment 2.  See Brief for
Respondents Evans et al. 11-12.  The clear import of the
Colorado court's conclusion that it is not affected is that
-general laws and policies that prohibit arbitrary
discrimination- would continue to prohibit discrimination
on the basis of homosexual conduct as well.  This
analysis, which is fully in accord with (indeed, follows
inescapably from) the text of the constitutional provision,
lays to rest such horribles, raised in the course of oral
argument, as the prospect that assaults upon homosexu-
als could not be prosecuted.  The amendment prohibits
special treatment of homosexuals, and nothing more.  It
would not affect, for example, a requirement of state law
that pensions be paid to all retiring state employees
with a certain length of service; homosexual employees,
as well as others, would be entitled to that benefit.  But
it would prevent the State or any municipality from
making death-benefit payments to the -life partner- of
a homosexual when it does not make such payments to
the long-time roommate of a nonhomosexual employee.
Or again, it does not affect the requirement of the
State's general insurance laws that customers be
afforded coverage without discrimination unrelated to
anticipated risk.  Thus, homosexuals could not be denied
coverage, or charged a greater premium, with respect to
auto collision insurance; but neither the State nor any
municipality could require that distinctive health
insurance risks associated with homosexuality (if there
are any) be ignored.
  Despite all of its hand-wringing about the potential
effect of Amendment 2 on general antidiscrimination
laws, the Court's opinion ultimately does not dispute all
this, but assumes it to be true.  See ante, at 9.  The
only denial of equal treatment it contends homosexuals
have suffered is this: They may not obtain preferential
treatment without amending the state constitution.
That is to say, the principle underlying the Court's
opinion is that one who is accorded equal treatment
under the laws, but cannot as readily as others obtain
preferential treatment under the laws, has been denied
equal protection of the laws.  If merely stating this
alleged -equal protection- violation does not suffice to
refute it, our constitutional jurisprudence has achieved
terminal silliness.
  The central thesis of the Court's reasoning is that any
group is denied equal protection when, to obtain advan-
tage (or, presumably, to avoid disadvantage), it must
have recourse to a more general and hence more difficult
level of political decisionmaking than others.  The world
has never heard of such a principle, which is why the
Court's opinion is so long on emotive utterance and so
short on relevant legal citation.  And it seems to me
most unlikely that any multilevel democracy can func-
tion under such a principle.  For whenever a disadvan-
tage is imposed, or conferral of a benefit is prohibited,
at one of the higher levels of democratic decisionmaking
(i.e., by the state legislature rather than local govern-
ment, or by the people at large in the state constitution
rather than the legislature), the affected group has
(under this theory) been denied equal protection.  To
take the simplest of examples, consider a state law
prohibiting the award of municipal contracts to relatives
of mayors or city councilmen.  Once such a law is
passed, the group composed of such relatives must, in
order to get the benefit of city contracts, persuade the
state legislature-unlike all other citizens, who need
only persuade the municipality.  It is ridiculous to
consider this a denial of equal protection, which is why
the Court's theory is unheard-of.
  The Court might reply that the example I have given
is not a denial of equal protection only because the same
-rational basis- (avoidance of corruption) which renders
constitutional the substantive discrimination against
relatives (i.e., the fact that they alone cannot obtain city
contracts) also automatically suffices to sustain what
might be called the electoral-procedural discrimination
against them (i.e., the fact that they must go to the
state level to get this changed).  This is of course a
perfectly reasonable response, and would explain why
-electoral-procedural discrimination- has not hitherto
been heard of: a law that is valid in its substance is
automatically valid in its level of enactment.  But the
Court cannot afford to make this argument, for as I
shall discuss next, there is no doubt of a rational basis
for the substance of the prohibition at issue here.  The
Court's entire novel theory rests upon the proposition
that there is something special-something that cannot
be justified by normal -rational basis- analysis-in
making a disadvantaged group (or a nonpreferred group)
resort to a higher decisionmaking level.  That proposi-
tion finds no support in law or logic.

                           II
  I turn next to whether there was a legitimate rational
basis for the substance of the constitutional amend-
ment-for the prohibition of special protection for
homosexuals.  It is unsurprising that the Court avoids
discussion of this question, since the answer is so
obviously yes.  The case most relevant to the issue
before us today is not even mentioned in the Court's
opinion: In Bowers v. Hardwick, 478 U. S. 186 (1986),
we held that the Constitution does not prohibit what
virtually all States had done from the founding of the
Republic until very recent years-making homosexual
conduct a crime.  That holding is unassailable, except by
those who think that the Constitution changes to suit
current fashions.  But in any event it is a given in the
present case: Respondents' briefs did not urge overruling
Bowers, and at oral argument respondents' counsel
expressly disavowed any intent to seek such overruling,
Tr. of Oral Arg. 53.  If it is constitutionally permissible
for a State to make homosexual conduct criminal, surely
it is constitutionally permissible for a State to enact
other laws merely disfavoring homosexual conduct.  (As
the Court of Appeals for the District of Columbia Circuit
has aptly put it: -If the Court [in Bowers] was unwilling
to object to state laws that criminalize the behavior that
defines the class, it is hardly open . . . to conclude that
state sponsored discrimination against the class is
invidious.  After all, there can hardly be more palpable
discrimination against a class than making the conduct
that defines the class criminal.-  Padula v. Webster, 822
F. 2d 97, 103 (1987).)  And a fortiori it is constitution-
ally permissible for a State to adopt a provision not even
disfavoring homosexual conduct, but merely prohibiting
all levels of state government from bestowing special
protections upon homosexual conduct.  Respondents (who,
unlike the Court, cannot afford the luxury of ignoring
inconvenient precedent) counter Bowers with the argu-
ment that a greater-includes-the-lesser rationale cannot
justify Amendment 2's application to individuals who do
not engage in homosexual acts, but are merely of
homosexual -orientation.-  Some courts of appeals have
concluded that, with respect to laws of this sort at least,
that is a distinction without a difference.  See Equality
Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54
F. 3d 261, 267 (CA6 1995) (-[F]or purposes of these
proceedings, it is virtually impossible to distinguish or
separate individuals of a particular orientation which
predisposes them toward a particular sexual conduct
from those who actually engage in that particular type
of sexual conduct-); Steffan v. Perry, 41 F. 3d 677,
689-690 (CADC 1994).  The Supreme Court of Colorado
itself appears to be of this view.  See 882 P. 2d, at
1349-1350 (-Amendment 2 targets this class of persons
based on four characteristics: sexual orientation; conduct;
practices; and relationships.  Each characteristic provides
a potentially different way of identifying that class of
persons who are gay, lesbian, or bisexual.  These four
characteristics are not truly severable from one another
because each provides nothing more than a different way
of identifying the same class of persons-) (emphasis
added).
  But assuming that, in Amendment 2, a person of
homosexual -orientation- is someone who does not en-
gage in homosexual conduct but merely has a tendency
or desire to do so, Bowers still suffices to establish a
rational basis for the provision.  If it is rational to
criminalize the conduct, surely it is rational to deny
special favor and protection to those with a self-avowed
tendency or desire to engage in the conduct.  Indeed,
where criminal sanctions are not involved, homosexual
-orientation- is an acceptable stand-in for homosexual
conduct.  A State -does not violate the Equal Protection
Clause merely because the classifications made by its
laws are imperfect,- Dandridge v. Williams, 397 U. S.
471, 485 (1970).  Just as a policy barring the hiring of
methadone users as transit employees does not violate
equal protection simply because some methadone users
pose no threat to passenger safety, see New York City
Transit Authority v. Beazer, 440 U. S. 568 (1979), and
just as a mandatory retirement age of 50 for police
officers does not violate equal protection even though it
prematurely ends the careers of many policemen over 50
who still have the capacity to do the job, see Massachu-
setts Bd. of Retirement v. Murgia, 427 U. S. 307 (1976)
(per curiam), Amendment 2 is not constitutionally
invalid simply because it could have been drawn more
precisely so as to withdraw special antidiscrimination
protections only from those of homosexual -orientation-
who actually engage in homosexual conduct.  As Justice
Kennedy wrote, when he was on the Court of Appeals,
in a case involving discharge of homosexuals from the
Navy: -Nearly any statute which classifies people may
be irrational as applied in particular cases.  Discharge
of the particular plaintiffs before us would be rational,
under minimal scrutiny, not because their particular
cases present the dangers which justify Navy policy, but
instead because the general policy of discharging all
homosexuals is rational.-  Beller v. Middendorf, 632
F. 2d 788, 808-809, n. 20 (CA9 1980) (citation omitted).
See also Ben-Shalom v. Marsh, 881 F. 2d 454, 464 (CA7
1989), cert. denied, 494 U. S. 1004 (1990).
  Moreover, even if the provision regarding homosexual
-orientation- were invalid, respondents' challenge to
Amendment 2-which is a facial challenge-must fail.
-A facial challenge to a legislative Act is, of course, the
most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances
exists under which the Act would be valid.-  United
States v. Salerno, 481 U. S. 739, 745 (1987).  It would
not be enough for respondents to establish (if they could)
that Amendment 2 is unconstitutional as applied to
those of homosexual -orientation-; since, under Bowers,
Amendment 2 is unquestionably constitutional as applied
to those who engage in homosexual conduct, the facial
challenge cannot succeed.  Some individuals of homosex-
ual -orientation- who do not engage in homosexual acts
might successfully bring an as-applied challenge to
Amendment 2, but so far as the record indicates, none
of the respondents is such a person.  See App. 4-5
(complaint describing each of the individual respondents
as either -a gay man- or -a lesbian-).

                           III
  The foregoing suffices to establish what the Court's
failure to cite any case remotely in point would lead one
to suspect: No principle set forth in the Constitution, nor
even any imagined by this Court in the past 200 years,
prohibits what Colorado has done here.  But the case for
Colorado is much stronger than that.  What it has done
is not only unprohibited, but eminently reasonable, with
close, congressionally approved precedent in earlier
constitutional practice.
  First, as to its eminent reasonableness.  The Court's
opinion contains grim, disapproving hints that Colora-
dans have been guilty of -animus- or -animosity- toward
homosexuality, as though that has been established as
Unamerican.  Of course it is our moral heritage that one
should not hate any human being or class of human
beings.  But I had thought that one could consider
certain conduct reprehensible-murder, for example, or
polygamy, or cruelty to animals-and could exhibit even
-animus- toward such conduct.  Surely that is the only
sort of -animus- at issue here: moral disapproval of
homosexual conduct, the same sort of moral disapproval
that produced the centuries-old criminal laws that we
held constitutional in Bowers.  The Colorado amendment
does not, to speak entirely precisely, prohibit giving
favored status to people who are homosexuals; they can
be favored for many reasons-for example, because they
are senior citizens or members of racial minorities.  But
it prohibits giving them favored status because of their
homosexual conduct-that is, it prohibits favored status
for homosexuality.
  But though Coloradans are, as I say, entitled to be
hostile toward homosexual conduct, the fact is that the
degree of hostility reflected by Amendment 2 is the
smallest conceivable.  The Court's portrayal of Colora-
dans as a society fallen victim to pointless, hate-filled
-gay-bashing- is so false as to be comical.  Colorado not
only is one of the 25 States that have repealed their
antisodomy laws, but was among the first to do so.  See
1971 Colo. Sess. Laws, ch. 121, 1.  But the society that
eliminates criminal punishment for homosexual acts does
not necessarily abandon the view that homosexuality is
morally wrong and socially harmful; often, abolition
simply reflects the view that enforcement of such
criminal laws involves unseemly intrusion into the
intimate lives of citizens.  Cf. Brief for Lambda Legal
Defense and Education Fund, Inc., et al. as Amici
Curiae in Bowers v. Hardwick, O. T. 1985, No. 85-140,
p. 25, n. 21 (antisodomy statutes are -unenforceable by
any but the most offensive snooping and wasteful
allocation of law enforcement resources-); Kadish, The
Crisis of Overcriminalization, 374 The Annals of the
American Academy of Political and Social Science 157,
161 (1967) (-To obtain evidence [in sodomy cases], police
are obliged to resort to behavior which tends to degrade
and demean both themselves personally and law enforce-
ment as an institution-).
  There is a problem, however, which arises when
criminal sanction of homosexuality is eliminated but
moral and social disapprobation of homosexuality is
meant to be retained.  The Court cannot be unaware of
that problem; it is evident in many cities of the country,
and occasionally bubbles to the surface of the news, in
heated political disputes over such matters as the
introduction into local schools of books teaching that
homosexuality is an optional and fully acceptable -alter-
nate life style.-  The problem (a problem, that is, for
those who wish to retain social disapprobation of
homosexuality) is that, because those who engage in
homosexual conduct tend to reside in disproportionate
numbers in certain communities, see Record, Exh. MMM,
have high disposable income, see ibid.; App. 254 (affida-
vit of Prof. James Hunter), and of course care about
homosexual-rights issues much more ardently than the
public at large, they possess political power much
greater than their numbers, both locally and statewide.
Quite understandably, they devote this political power to
achieving not merely a grudging social toleration, but
full social acceptance, of homosexuality.  See, e.g.,
Jacobs, The Rhetorical Construction of Rights: The Case
of the Gay Rights Movement, 1969-1991, 72 Neb. L.
Rev. 723, 724 (1993) (-[T]he task of gay rights propo-
nents is to move the center of public discourse along a
continuum from the rhetoric of disapprobation, to
rhetoric of tolerance, and finally to affirmation-).
  By the time Coloradans were asked to vote on Amend-
ment 2, their exposure to homosexuals' quest for social
endorsement was not limited to newspaper accounts of
happenings in places such as New York, Los Angeles,
San Francisco, and Key West.  Three Colorado cities-
Aspen, Boulder, and Denver-had enacted ordinances
that listed -sexual orientation- as an impermissible
ground for discrimination, equating the moral disap-
proval of homosexual conduct with racial and religious
bigotry.  See Aspen Municipal Code 13-98 (1977);
Boulder Rev. Municipal Code 12-1-1 to 12-1-11
(1987); Denver Rev. Municipal Code, Art. IV 28-91 to
28-116 (1991).  The phenomenon had even appeared
statewide: the Governor of Colorado had signed an
executive order pronouncing that -in the State of
Colorado we recognize the diversity in our pluralistic
society and strive to bring an end to discrimination in
any form,- and directing state agency-heads to -ensure
non-discrimination- in hiring and promotion based on,
among other things, -sexual orientation.-  Executive
Order No. D0035 (Dec. 10, 1990).  I do not mean to be
critical of these legislative successes; homosexuals are as
entitled to use the legal system for reinforcement of
their moral sentiments as are the rest of society.  But
they are subject to being countered by lawful, democratic
countermeasures as well.
  That is where Amendment 2 came in.  It sought to
counter both the geographic concentration and the
disproportionate political power of homosexuals by (1)
resolving the controversy at the statewide level, and (2)
making the election a single-issue contest for both sides.
It put directly, to all the citizens of the State, the
question: Should homosexuality be given special protec-
tion?  They answered no.  The Court today asserts that
this most democratic of procedures is unconstitutional.
Lacking any cases to establish that facially absurd
proposition, it simply asserts that it must be unconstitu-
tional, because it has never happened before.
-[Amendment 2] identifies persons by a single trait
and then denies them protection across the board.
The resulting disqualification of a class of persons
from the right to seek specific protection from the
law is unprecedented in our jurisprudence.  The
absence of precedent for Amendment 2 is itself
instructive . . . .
      -It is not within our constitutional tradition to
enact laws of this sort.  Central both to the idea of
the rule of law and to our own Constitution's
guarantee of equal protection is the principle that
government and each of its parts remain open on
impartial terms to all who seek its assistance.-
Ante, at 11-12.
As I have noted above, this is proved false every time a
state law prohibiting or disfavoring certain conduct is
passed, because such a law prevents the adversely
affected group-whether drug addicts, or smokers, or
gun owners, or motorcyclists-from changing the policy
thus established in -each of [the] parts- of the State.
What the Court says is even demonstrably false at the
constitutional level.  The Eighteenth Amendment to the
Federal Constitution, for example, deprived those who
drank alcohol not only of the power to alter the policy
of prohibition locally or through state legislation, but
even of the power to alter it through state constitutional
amendment or federal legislation.  The Establishment
Clause of the First Amendment prevents theocrats from
having their way by converting their fellow citizens
at the local, state, or federal statutory level; as does
the Republican Form of Government Clause prevent
monarchists.
  But there is a much closer analogy, one that involves
precisely the effort by the majority of citizens to pre-
serve its view of sexual morality statewide, against the
efforts of a geographically concentrated and politically
powerful minority to undermine it.  The constitutions of
the States of Arizona, Idaho, New Mexico, Oklahoma,
and Utah to this day contain provisions stating that
polygamy is -forever prohibited.-  See Ariz. Const., Art.
XX, par. 2; Idaho Const., Art. I, 4; N. M. Const., Art.
XXI, 1; Okla. Const., Art. I, 2; Utah Const., Art. III,
1.  Polygamists, and those who have a polygamous
-orientation,- have been -singled out- by these provisions
for much more severe treatment than merely denial of
favored status; and that treatment can only be changed
by achieving amendment of the state constitutions.  The
Court's disposition today suggests that these provisions
are unconstitutional, and that polygamy must be per-
mitted in these States on a state-legislated, or perhaps
even local-option, basis-unless, of course, polygamists
for some reason have fewer constitutional rights than
homosexuals.
  The United States Congress, by the way, required the
inclusion of these antipolygamy provisions in the
constitutions of Arizona, New Mexico, Oklahoma, and
Utah, as a condition of their admission to statehood.
See Arizona Enabling Act, 36 Stat. 569; New Mexico
Enabling Act, 36 Stat. 558; Oklahoma Enabling Act, 34
Stat. 269; Utah Enabling Act, 28 Stat. 108.  (For
Arizona, New Mexico, and Utah, moreover, the Enabling
Acts required that the antipolygamy provisions be
-irrevocable without the consent of the United States
and the people of said State--so that not only were
-each of [the] parts- of these States not -open on
impartial terms- to polygamists, but even the States as
a whole were not; polygamists would have to persuade
the whole country to their way of thinking.)  Idaho
adopted the constitutional provision on its own, but the
51st Congress, which admitted Idaho into the Union,
found its constitution to be -republican in form and . . .
in conformity with the Constitution of the United States.-
Act of Admission of Idaho, 26 Stat. 215 (emphasis
added).  Thus, this -singling out- of the sexual practices
of a single group for statewide, democratic vote-so
utterly alien to our constitutional system, the Court
would have us believe-has not only happened, but has
received the explicit approval of the United States
Congress.
  I cannot say that this Court has explicitly approved
any of these state constitutional provisions; but it has
approved a territorial statutory provision that went even
further, depriving polygamists of the ability even to
achieve a constitutional amendment, by depriving them
of the power to vote.  In Davis v. Beason, 133 U. S. 333
(1890), Justice Field wrote for a unanimous Court:
-In our judgment, 501 of the Revised Statutes of
Idaho Territory, which provides that `no person . . .
who is a bigamist or polygamist or who teaches,
advises, counsels, or encourages any person or
persons to become bigamists or polygamists, or to
commit any other crime defined by law, or to enter
into what is known as plural or celestial marriage,
or who is a member of any order, organization or
association which teaches, advises, counsels, or
encourages its members or devotees or any other
persons to commit the crime of bigamy or polygamy,
or any other crime defined by law . . . is permitted
to vote at any election, or to hold any position or
office of honor, trust, or profit within this Territory,'
is not open to any constitutional or legal objection.-
Id., at 346-347 (emphasis added).
To the extent, if any, that this opinion permits the
imposition of adverse consequences upon mere abstract
advocacy of polygamy, it has of course been overruled by
later cases.  See Brandenburg v. Ohio, 395 U. S. 444
(1969) (per curiam).  But the proposition that polygamy
can be criminalized, and those engaging in that crime
deprived of the vote, remains good law.  See Richardson
v. Ramirez, 418 U. S. 24, 53 (1974).  Beason rejected the
argument that -such discrimination is a denial of the
equal protection of the laws.-  Brief for Appellant in
Davis v. Beason, O. T. 1889, No. 1261, p. 41.  Among
the Justices joining in that rejection were the two whose
views in other cases the Court today treats as equal-
protection lodestars-Justice Harlan, who was to
proclaim in Plessy v. Ferguson, 163 U. S. 537, 559 (1896)
(dissenting opinion), that the Constitution -neither
knows nor tolerates classes among citizens,- quoted ante,
at 1, and Justice Bradley, who had earlier declared that
-class legislation . . . [is] obnoxious to the prohibitions
of the Fourteenth Amendment,- Civil Rights Cases, 109
U. S. 3, 24 (1883), quoted ante, at 14.
  This Court cited Beason with approval as recently as
1993, in an opinion authored by the same Justice who
writes for the Court today.  That opinion said: -[A]d-
verse impact will not always lead to a finding of
impermissible targeting.  For example, a social harm
may have been a legitimate concern of government for
reasons quite apart from discrimination. . . . See, e.g.,
. . . Davis v. Beason, 133 U. S. 333 (1890).-  Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 535
(1993).  It remains to be explained how 501 of the
Idaho Revised Statutes was not an -impermissible
targeting- of polygamists, but (the much more mild)
Amendment 2 is an -impermissible targeting- of homo-
sexuals.  Has the Court concluded that the perceived
social harm of polygamy is a -legitimate concern of
government,- and the perceived social harm of homosex-
uality is not?

                           IV
  I strongly suspect that the answer to the last question
is yes, which leads me to the last point I wish to make:
The Court today, announcing that Amendment 2 -defies
. . . conventional [constitutional] inquiry,- ante, at 10,
and -confounds [the] normal process of judicial review,-
ante, at 11, employs a constitutional theory heretofore
unknown to frustrate Colorado's reasonable effort to
preserve traditional American moral values.  The Court's
stern disapproval of -animosity- towards homosexuality
might be compared with what an earlier Court (includ-
ing the revered Justices Harlan and Bradley) said in
Murphy v. Ramsey, 114 U. S. 15 (1885), rejecting a
constitutional challenge to a United States statute that
denied the franchise in federal territories to those who
engaged in polygamous cohabitation:
-[C]ertainly no legislation can be supposed more
wholesome and necessary in the founding of a free,
self-governing commonwealth, fit to take rank as one
of the co-ordinate States of the Union, than that
which seeks to establish it on the basis of the idea
of the family, as consisting in and springing from
the union for life of one man and one woman in the
holy estate of matrimony; the sure foundation of all
that is stable and noble in our civilization; the best
guaranty of that reverent morality which is the
source of all beneficent progress in social and
political improvement.-  Id., at 45.
I would not myself indulge in such official praise for
heterosexual monogamy, because I think it no business
of the courts (as opposed to the political branches) to
take sides in this culture war.
  But the Court today has done so, not only by invent-
ing a novel and extravagant constitutional doctrine to
take the victory away from traditional forces, but even
by verbally disparaging as bigotry adherence to tradi-
tional attitudes.  To suggest, for example, that this
constitutional amendment springs from nothing more
than -`a bare . . . desire to harm a politically unpopular
group,'- ante, at 13, quoting Department of Agriculture
v. Moreno, 413 U. S. 528, 534 (1973), is nothing short of
insulting.  (It is also nothing short of preposterous to
call -politically unpopular- a group which enjoys enor-
mous influence in American media and politics, and
which, as the trial court here noted, though composing
no more than 4% of the population had the support of
46% of the voters on Amendment 2, see App. to Pet. for
Cert. C-18.)
  When the Court takes sides in the culture wars, it
tends to be with the knights rather than the villeins--
and more specifically with the Templars, reflecting the
views and values of the lawyer class from which the
Court's Members are drawn.  How that class feels about
homosexuality will be evident to anyone who wishes to
interview job applicants at virtually any of the Nation's
law schools.  The interviewer may refuse to offer a job
because the applicant is a Republican; because he is an
adulterer; because he went to the wrong prep school or
belongs to the wrong country club; because he eats
snails; because he is a womanizer; because she wears
real-animal fur; or even because he hates the Chicago
Cubs.  But if the interviewer should wish not to be an
associate or partner of an applicant because he disap-
proves of the applicant's homosexuality, then he will
have violated the pledge which the Association of
American Law Schools requires all its member-schools to
exact from job interviewers: -assurance of the employer's
willingness- to hire homosexuals.  Bylaws of the Associa-
tion of American Law Schools, Inc. 6-4(b); Executive
Committee Regulations of the Association of American
Law Schools 6.19, in 1995 Handbook, Association of
American Law Schools.  This law-school view of what
-prejudices- must be stamped out may be contrasted
with the more plebeian attitudes that apparently still
prevail in the United States Congress, which has been
unresponsive to repeated attempts to extend to homosex-
uals the protections of federal civil rights laws, see, e.g.,
Employment Non-Discrimination Act of 1994, S. 2238,
103d Cong., 2d Sess. (1994); Civil Rights Amendments
of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and
which took the pains to exclude them specifically from
the Americans With Disabilities Act of 1990, see 42
U. S. C. 12211(a) (1988 ed., Supp. V).

                       *   *   *
  Today's opinion has no foundation in American
constitutional law, and barely pretends to.  The people
of Colorado have adopted an entirely reasonable provi-
sion which does not even disfavor homosexuals in any
substantive sense, but merely denies them preferential
treatment.  Amendment 2 is designed to prevent
piecemeal deterioration of the sexual morality favored by
a majority of Coloradans, and is not only an appropriate
means to that legitimate end, but a means that Ameri-
cans have employed before.  Striking it down is an act,
not of judicial judgment, but of political will.  I dissent.

-end-
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                                                  Rex Wockner
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                                                  Rex Wockner
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