Anti-gay rights movement stumbles at Supreme Court Justices react harshly to bellwether measure approved in Colorado

October 11, 1995|By LYLE DENNISTON | LYLE DENNISTON,SUN NATIONAL STAFF

WASHINGTON -- A campaign gaining ground in several states to bar the government from protecting homosexual rights faltered yesterday in its first constitutional test in the Supreme Court.

Colorado's voter-approved "Amendment 2," a 1992 measure that nearly precludes any state or local law or policy that protects the rights of gays, lesbians and bisexuals, met a critical and at times harsh response from several justices.

The justices cast no final votes after a one-hour hearing, and months of behind-the-scenes negotiations remain before a ruling. But the reaction of a majority of five justices to Amendment 2 was distinctly negative.

Four of those justices make up the court's most liberal bloc, so their response was no surprise. But in an unexpected development, one of the court's centrists -- Justice Anthony M. Kennedy -- joined in the questioning as a strong critic of the measure.

Echoing themes stated in a brief against Amendment 2 that was submitted by a group of law professors ranging from liberal to conservative, Justice Kennedy suggested that the scope of the Colorado amendment was so broad that it took away from homosexuals all options for gaining legal redress from bias.

"I have never seen [an enactment] like this," Justice Kennedy told Colorado's state solicitor general, Timothy M. Tymkovich, who was defending the constitutionality of the 1992 measure.

The justice asked whether any court had ever upheld such a law, and when Mr. Tymkovich suggested one precedent, Justice Kennedy brusquely pushed it aside, saying that the prior ruling "doesn't work" to support the Colorado amendment.

The state measure is the highlight of a growing campaign to block laws and policies that insulate homosexuals from official and private discrimination because of their homosexuality. The Colorado case has become a testing ground for the anti-homosexual movement, and its outcome could significantly affect the national debate over gay rights.

Justice Kennedy and another centrist member of the court, Sandra Day O'Connor, tend to cast the deciding votes when the court is divided on a major dispute, and their reactions yesterday were watched closely by spectators in a packed courtroom. An hour before the hearing began, nearly 250 people were lined up outside, hoping to get seats.

Justice O'Connor didn't seem ready to join either side of the case, saying the court knew too little about exactly how Amendment 2 affects legal rights of homosexuals.

"I don't read anything [in the measure's wording] that tells me what it means," Justice O'Connor told Mr. Tymkovich. She suggested that Amendment 2 might be broad enough in scope even to permit a public librarian to stop a homosexual from borrowing a book because of that person's sexual orientation.

Justice Antonin Scalia was the only outright supporter of Amendment 2 at the hearing. Repeatedly, he suggested specific answers that Mr. Tymkovich could give to hard questions raised by other justices.

Chief Justice William H. Rehnquist left the impression that he would favor the measure's constitutionality. Among the nine members of the court, only Justice Clarence Thomas remained silent throughout.

Justice Ruth Bader Ginsburg led off the more liberal justices' challenges to the Colorado amendment, suggesting that never before had a law singled out a group of citizens and blocked them from taking their grievances to their government.

Mr. Tymkovich defended Amendment 2 as a response by the people of Colorado "to the political activism" of homosexuals in achieving "special protection" through laws assuring homosexuals of access to jobs and housing.

Many Coloradans, he said, fear that the successes of the gay rights movement will allow the government to intrude into the lives of anti-homosexual citizens by forcing them to deal with homosexuals.

Justice David H. Souter suggested that Colorado was relying on the simple theory that the state's voters are entitled to get what they want, without any legal justification for barring only homosexuals from an equal role in the state's government processes.

Jean E. Dubofsky, a former state supreme court justice who spoke for Amendment 2's challengers, tried to fend off rigorous questioning from Justice Scalia. He insisted that homosexuals in the state were seeking special rights, beyond those that everybody has.

She replied at one point that "there is no such thing as special rights; everybody has a right not to be arbitrarily discriminated against." That, she said, is what homosexuals were seeking when their efforts were scuttled by Amendment 2.

In another action yesterday, the court put an end to the efforts of Shannon R. Faulkner, a South Carolina woman, to strike down the male-only admission policy at the Citadel, a military college. Because she withdrew from the Citadel after having been admitted under court order, the court said, her legal claim was dead.

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