Kennedy's queer opinion - Supreme Court Justice Anthony Kennedy's majority opinion in 'Romer v Evans,' which struck down a Colorado amendment banning gay-rights laws

National Review, June 17, 1996 by Ramesh Ponnoru

In Romer v. Evans, Supreme Court Justice Anthony Kennedy achieved a trifecta: his majority opinion earned praise from the editorial pages of the New York Times, the Washington Post, and even the Wall Street Journal. Such were the rewards of slapping down the voters of Colorado, a majority of whom had the temerity to support, in a 1992 referendum, an amendment to the state constitution deemed invidious by bien-pensants everywhere.

Amendment Two prohibited the state and local governments from treating homosexuality as the basis for any legal ''minority status, quota preferences, protected status, or claim of discrimination.'' It was enacted as a response to ''gay-rights laws'' that banned discrimination against homosexuals in a number of cities. As legal philosopher Hadley Arkes puts it, the amendment ''tried to preserve for people in their private settings the freedom to honor their moral and religious judgments regarding homosexuality.'' The law could be justified independently of any view of homosexuality. But its essentially libertarian purpose has eluded most commentators. Frank Rich of the New York Times described it, with his usual attention to nuance, as ''a gay-bashing law'' -- as if Coloradans had voted to legalize, or perhaps mandate, the beating of homosexuals.

The Supreme Court proved no more capable of distinguishing between the motives behind such criminal behavior and those behind Colorado voters' choice. Five other Justices agreed with Justice Kennedy's conclusion that ''the amendment seems inexplicable by anything but animus toward the class that it affects.'' It was ''born of animosity,'' of a ''bare . . . desire to harm a politically unpopular group.'' As such, it ''bears [no] rational relation to some legitimate end'' of government. And because it fails this ''rational basis'' test, the amendment violates the Fourteenth Amendment to the U.S. Constitution, which enjoins states to give all citizens ''equal protection of the laws.'' Other groups can ask government for and enjoy legal protections; only homosexuals are singled out, unable to secure such protections without undertaking the arduous task of repealing a constitutional amendment.

Justice Scalia subjected these arguments to appropriate scorn in a withering dissent of the type to which Court watchers have become too accustomed from him. (It's practically an art form.) Joined by Chief Justice William Rehnquist and Justice Clarence Thomas, Scalia wrote that ''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 doesn't suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.'' Monarchists, he noted, are prevented by the U.S. Constitution ''from having their way by converting their fellow citizens at the local, state, or federal statutory level.'' Several state constitutions single out polygamists ''for much more severe treatment than merely denial of favored status.''

Far from expressing ''animus'' to a group, Amendment Two didn't classify people at all; it merely specified a characteristic which could not be a basis for legal protection. A black homosexual could still sue if he experienced racial discrimination; a lesbian would still have legal protection against sexual discrimination; generally applicable laws would prohibit assaults against either. Homosexuals were put in no worse a position than redheads or left-handers.

If voters had thought the amendment was ''born of animosity,'' they probably wouldn't have passed it. The same day they did, the voters of Oregon heavily rejected a proposition that declared homosexuality ''abnormal, wrong, unnatural, and perverse.'' By holding as it did, the Court put its imprimatur on the notion that moral disapproval of homosexuality is bigotry, akin to racism. Indeed, the Court is impugning the motives of a majority of the American public. The lesson of Romer, according to Princeton Professor Robert George, is that ''the contempt for democracy social liberals have always shown in practice they have just declared in theory.''

The logic of the ruling, if applied consistently, would endanger any law that can be construed as disfavoring homosexuality. Laws against homosexual adoption could be held to be unconstitutionally based on ''animus.'' Jurisdictions that don't have ''gay rights'' laws on the books could, in principle, be enjoined to enact them. ''There's an embarrassment of riches for the other side,'' says Michael Uhlmann of the conservative Ethics and Public Policy Center. Activist litigators for ''gay rights'' can pick and choose which laws they wish to challenge. A Republican House aide observes, ''I could construct a fairly decent argument -- and I'm sure the memoranda are being written even as we speak -- that Romer makes heterosexual-marriage laws unconstitutional.''