The Supreme Court strikes a surprising blow for gay rights

By a 6-3 vote, the Justices throw out Colorado's notorious Amendment 2. Will gay marriage be the Court's next challenge?


Andrew Ross
May 20, 1996 3:49PM (UTC)

Gay rights activists broke out the champagne Monday after the Supreme Court ruled Colorado's notorious Amendment 2 unconstitutional. "It is truly monumental," exulted Kathryn Kendell, legal director of the National Center for Lesbian Rights in San Francisco. "It's the most important ruling for lesbians and gay men since the court upheld Georgia's anti-sodomy law 10 years ago."

James F. Simon, a law professor at New York Law School and author of the book, "The Center Holds: The Power Struggle Inside the Rehnquist Court" (Simon & Schuster), called the decision "a very important civil liberties victory in general, and for the gay rights movement in particular."

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The emphatic 6-3 ruling, written by the usually conservative Justice Anthony Kennedy, affirmed the Colorado Supreme Court's rejection of a 1992 state ballot initiative that would have barred local governments from adopting gay rights laws. "Amendment 2 classifies homosexuals ... to make them unequal to everyone else," wrote Kennedy. "This Colorado cannot do. A state cannot deem a class of persons a stranger to its laws."

As significant as today's ruling is, gay rights still have a long road to travel. Opponents will take heart from one of the dissenting Justices, Antonin Scalia, who said Amendment 2 was "designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans." He said the majority ruling was "an act, not of judicial judgment, but of political will."

Whatever else, the ruling raises the stakes in the battle around gay marriages. With a pro-gay marriage ordinance passing muster in Hawaii courts and Republicans in Congress pushing for a law denying federal recognition to such unions -- a stand President Clinton says he supports -- the whole issue is bound to wind up on the Supreme Court's docket sometime in the next few years. Legal analysts are much less sure the Court will take their side on this one.

"You've got a different set of factors there," said Simon. "Protecting minorities under the law is one thing. By creating a new set of traditions that must be protected under the law -- which you would be doing by legalizing same-sex marriages -- you're going beyond what the Court defended today."

Kendell was more hopeful. "I do think that the Court has sent a signal today that you cannot fence out lesbians and gay men, that they are part of the fabric of this country she said. "That at least sets a tone that could be helpful in other battles -- including lesbian and gay marriage."

The key issue, say Kendell and others, is whether there is a fundamental constitutional right to marry that extends to all couples, regardless of race and orientation. That right has been recognized by the Court in the past -- for example when it ruled 30 years ago that mixed race couples had a fundamental right to marry. There are also issues of privacy here, although on that score the Supreme Court has been less encouraging. It ignored such considerations in 1985 when it ruled in favor of Georgia's anti-sodomy laws, a ruling that Kendell describes as a "gut punch" to lesbians and gays.

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"The only thing that I as an activist lawyer ask the courts to do is to approach issues involving lesbian and gay men objectively, without being blinded by prejudice," says Kendell. "If they do that -- as the Court appears to have done today -- they will virtually always reach the right decision."


Is the strike down of Amendment 2 a sign that the Supreme Court will
eventually make gay marriages constitutional? Tell us what you think in Table Talk.


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Andrew Ross

Andrew Ross is Salon's executive vice president.

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