A Rebuttal to Justice Scalia's Dissent in Romer v. Evans, USSC #94-1039

A summary of this page is available.

On May 20, 1996, the United States Supreme Court struck down Colorado's Amendment 2 in a 6-3 decision. Amendment 2 said in part

"Neither the State of Colorado, through any of its branches or departments, 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."

While this is a great decision, it is instructive to read the dissenting opinion. It's sufficiently inflamed me to work on a rebuttal. After all, if we can't refute this argument, shouldn't we just concede?

This rebuttal uses two columns. On the left is the preprint of Justice Scalia's dissent in the case Romer v. Evans. The right hand column contains my rebuttal to his dissent. Each part of the rebuttal is broken up into sections: first I provide my interpretation of Scalia's argument, which I then attempt to refute. Finally, there may be commentary.

Throughout my rebuttal I use the term "homosexual". This is in response to Scalia's arguments, in which he does not mention other non-heterosexual people. Note that Amendment 2 affects both homosexual, bisexual, and trans* people.

You can read the entire opinion and dissent if you wish.


No. 94-1039



[May 20, 1996]


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 proposition 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 preferential 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 "animosity" toward homosexuality, ante, at 13, is evil. I vigorously dissent.


Scalia casts this decision in terms he is comfortable with: this is not so much a question about the right to seek equal legal rights from the government as it is a case of "just plain [heterosexual] folks" protecting traditional morals. He holds this to be valid by precedent in U.S. law. His support for this will be expounded below.

Since homosexual sodomy can be outlawed, this is a valid basis for discrimination against an entire class of people (who may perform this act). Since there is no explicit prohibition on such discrimination in the U.S. Constitution, it is rightfully a matter for the people of the state of Colorado to decide. Thus the federal courts have no business overruling the people of the state of Colorado.


The various points of this argument will rebutted in the following sections.


The number of old chestnuts that is propounded here is rather exceptional. We have the people of Colorado "preserv[ing] traditional sexual mores", homosexuals as a "politically powerful minority", civil libertarians as an "elite class", et cetera.

Scalia's use of the word "Kulturkampf" is fascinating. I assume it means "cultural struggle". He must have known that it would invoke Adolf Hitler's polemic Mein Kampf. How can we not draw an analogy? He practically invites us to do so. [Note, 2000-12-18: this assumption was only partly correct.]


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 argument 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, Section 24-34-402(1)(a), 10A C. R. S. (1994 Supp.); marital or family status, Section 24-34-502(1)(a), 10A C. R. S. (1994 Supp.); veterans' status, Section 28-3-506, 11B C. R. S. (1989); and for any legal, off-duty conduct such as smoking tobacco, Section 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. Section 24-34-402.5 (Supp. 1995), which this passage authoritatively 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 homosexuals 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 advantage (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 function under such a principle. For whenever a disadvantage 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 government, 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 proposition finds no support in law or logic.


Amendment 2 does not supersede existing Colorado laws barring discrimination on any other basis than sexual orientation. Homosexuals will retain existing protections from discrimination that are not based on their sexual orientation.

The majority opinion is based on the idea that equal protection is denied when a group must face a more difficult level of political decisionmaking than others. This is in contrast to a simple example: relatives of a city's mayor may not receive municipal contracts. Just as this is not a violation of the Fourteenth Amendment, neither is Colorado's Amendment 2.

The objection that Amendment 2 has no rational basis is refuted in the next section.


This section builds Scalia's case for the legality of Amendment 2. His entire argument now rests on whether there is a rational basis for discrimination against homosexuals.


"It's all right folks. You won't lose any of the legal protections to which you have a right.". Should we be grateful that we are at least citizens to that extent?

The analogy of awarding municipal contracts to relatives is key: does Amendment 2 rest upon a rational basis for discrimination?

Noted without comment is the "special treatment" warhorse.


I turn next to whether there was a legitimate rational basis for the substance of the constitutional amendment--for the prohibition of special protection for homosexuals. [1] 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 constitutionally 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 argument 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 engage 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 Massachusetts 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 homosexual "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"). [2]


It is legal, under Bowers v. Hardwick, to make homosexual sodomy a crime. If homosexual conduct can be made illegal, then it is permissible to enact laws disfavoring homosexual conduct.

Scalia then argues that homosexual orientation and homosexual conduct cannot be separated. Being homosexual implies that one has a "self-avowed desire to engage in the [potentially criminal] conduct".

Amendment 2 is open to the charge that it is too broad. It applies to people of homosexual orientation who do not engage in homosexual conduct. It may be reasonably challenged by someone in this class. However, all of the respondents in this case are identified as either gay or lesbian, and (because orientation = conduct) cannot bring challenge under this distinction.


A fundamental flaw in Scalia's reasoning is his citing of Bowers v. Hardwick. He conveniently ignores two fundamental facts of this case:

  • The U.S. court system threw out a heterosexual's challenge to Georgia's anti-sodomy law, reasoning that a heterosexual couple could not be prosecuted due to the special nature of their bond (see a Virginia case, Doe v. Commonwealth's Attorney) [1]. This is willful duplicity. By denying non-heterosexual people the privacy of the bedroom, the government itself has been guilty of discrimination. Arguing that such people can be considered criminals because of a judicial decision which denies them equal status (and makes their actions criminal) is an abuse of legal power.

  • The Georgia court's dismissal of "John and Mary Doe"'s complaint is ahistorical. When the original thirteen states made sodomy illegal, I strongly suspect that the law was targeted at people who were heterosexual, judging from the lack of any mention of the sexual preference of the accused. Hence citing this country's long tradition of punishing sodomy is a false argument: sodomy was punishable for all orientations, not just one. Did some event occur that made heterosexual sodomy legal? Yes. It was the changing morality of the courts.

He states that Bowers upheld the constitutionality of making homosexual conduct (i.e. sodomy) a crime. A fairer interpretation of this would be that the court upheld the constitutionality of their interpretation of what sodomy was - an interpretation which had not remained constant "from the founding of the Republic until very recent years". This is a deliberate misreading of history.

Without Bowers, the case falls apart.


Scalia argues that it is legal to prevent people from seeking legal protections if they have a "tendency" to commit a crime. Even leaving the obvious argument aside, in the next section Scalia mentions that, as proof of their sympathy to homosexuals, Colorado was one of the first states to repeal its antisodomy laws. So you can be denied equal protection because you may have a tendency to perform a legal act. This is a truly novel theory.

Going back to the previous analogy of the mayor's relatives, it would seem legal to make a state law that bars these people from ever seeking legal protection because they are the mayor's relatives. Doesn't this seem a little odd?

The strangest part of the entire dissent is the end of this section. Scalia leaves the door open for what he considers a valid challenge to Amendment 2. This door is only one way, though. Only someone who is of homosexual orientation but would deny it would successfully be able to bring a challenge. If the person did not deny her or his homosexual orientation, then (by Scalia's reasoning) that person would be admitting that he or she is inclined to commit an act that could be criminalized. (I'm surprised he didn't close the door the rest of the way by asserting that any homosexual who brought a challenge was implicitly announcing his or her orientation and thus forfeited the chance to make a valid challenge!) In the last paragraph, Scalia uses quotes around the word "orientation" to show his disbelief of the separation of acts and orientation.

There's a quote in this section from Padua v. Webster that is horribly ironic:

"After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal."

I may not agree that sodomy defines the homosexual class, but is there a better test than this of the discriminatory attitude of the majority of voting Coloradans?


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 Coloradans 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 Coloradans 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, Section 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 enforcement 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 "alternate 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 (affidavit 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 proponents 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 Amendment 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 disapproval of homosexual conduct with racial and religious bigotry. See Aspen Municipal Code Section 13-98 (1977); Boulder Rev. Municipal Code Sections 12-1-1 to 12-1-11 (1987); Denver Rev. Municipal Code, Art. IV Sections 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 protection? 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 unconstitutional, 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 preserve 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, Section 4; N. M. Const., Art. XXI, Section 1; Okla. Const., Art. I, Section 2; Utah Const., Art. III, Section 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 permitted 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, Section 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. [3]

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]dverse 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 Section 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 homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not?


This section is devoted to showing that the U.S. has engaged in this kind of limitation of equal protection before. After some handwaving about "reasonableness" of Amendment 2, the relevant (and only) example cited is the fact that U.S. territories, as a prerequisite to becoming states, were required by Congress to include anti-polygamy clauses that state polygamy is "forever prohibited". These terms went on to require that changes to this policy had to have the consent of both the state and the U.S. He compares this to the provisions of Amendment 2 and find that Amendment 2 less restrictive, and hence constitutional.

He then goes on to state that the Supreme Court has never approved any of these provisions, however. He cites a 1890 Supreme Court opinion (Davis v. Beason) that denies the right to vote to a person who even encourages a plural marriage. He explicitly agrees with this law.

The majority of the court does not [2]. Their argument is based on the denial of the right to vote, which triggers strict scrutiny. Amendment 2 does not limit the right to vote, and so strict scrutiny is not applicable.


The handwaving about the "reasonableness" of Amendment 2 will be dealt with in the Commentary section; it does not belong in a rebuttal, nor does it belong in a Supreme Court opinion.

Scalia's argument by analogy with polygamy is poor. Like Bowers, he is saying that the existence of a bad precedent (in this case, Beason) is enough to make Amendment 2 legal. This is a simple case of him just plain being wrong. The private conduct of citizens is not the domain of government, and what could be more private than whom one chooses to spend one's life with? The anti-polygamy statutes are plainly unconstitutional, and remain now as an embarrassing artifact.

The nut here is strict scrutiny. Scalia sees this as a requirement to strike down Amendment 2. The majority opinion answers here: "it is a classification of persons undertaken for its own sake", "divorced from any factual context from which we could discern a relationship to legitimate state interests" [3].

I don't understand how he can agree that a person who even encourages polygamy could be denied the right to vote, but he appears to.


Scalia starts on the defensive. It's not such a bad law, he argues, and proceeds to list reasons why. After all, this is just the "smallest conceivable" degree of hostility that Coloradans could show. And they were just trying to express their disapproval in a way that didn't hurt anyone.

This doesn't ring true. Does he really believe that Colorado's existing laws preventing anti-homosexual discrimination aren't necessary? If the laws exist, then someone had to make them. They fill a need. A truly minimal gesture would be a resolution that carried no legal impact at all, such as "We, the people of the state of Colorado, find homosexuality worthy of disgrace.". Amendment 2 went far beyond that.

We then descend into all the clichés that bigots trot out: a homosexual agenda, their disproportionate political power, et cetera. Hey! Did it ever occur to him that political power is something that must be exercised, and that those who have "disproportionate" power only do so because of the vacuum left by those who abdicate their own?

After all this, Scalia goes on the offensive with what he must smugly feel is his trump card: the dreaded slippery slope. Yes, folks, if you strike down Amendment 2, then you will have to legalize the dreaded specter of plural marriage. Horrors. People might actually be allowed to follow their religion, or even just celebrate their commitment to each other. The downfall of society is an obvious consequence.

What Scalia doesn't seem to understand when he decries the majority opinion's "heavy reliance upon principles of righteousness rather than judicial holdings" is that they are going beyond inadequate and even contradictory previous rulings and setting a precedent. By definition a precedent is unprecedented. Perhaps his impotence in the face of a new ruling with which he vehemently disagrees is the reason for his vitriol.


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 (including 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 inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional 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 enormous 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 disapproves 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 Association of American Law Schools, Inc. Section 6-4(b); Executive Committee Regulations of the Association of American Law Schools Section 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 homosexuals the protections of federal civil right 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. Section 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 provision 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 Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.


The majority's opinion is based on a "novel and extravagant doctrine" that strikes at the heart of the Union, which is based on the family ("one man and one woman in the holy estate of matrimony").


There's nothing to rebut. This section is nothing but a summing up, with no new ideas introduced.


What is introduced in this section are a few more old falsehoods about homosexuality. Let's look at a few:

  1. Homosexuals can't be politically unpopular because they have "enormous influence in American media and politics".

    This is nothing more than the "gay agenda" argument in a judge's robe.

  2. Homosexuals do not face widespread disapproval in Colorado: although homosexuals comprise only 4% of the population (a number which can surely be disputed), Amendment 2 was voted against by 49% of Coloradans.

    Let us first remember that the 49% number was of voting Coloradans. Second, Amendment 2 deals with more than just sexual orientation; it also has to do with privacy. It is impossible to separate these two numbers. We can conclude that 51% of voting Coloradans value restricting an unpopular group's access to government protection more than their own right to privacy.

The last paragraph is nothing more than a rallying cry for social conservatives. It was obviously written with the intention of being quoted.

When it comes right down to it, this dissent brings up an important point. Homosexuality should be constitutionally protected. I have a strong feeling that if Amendment 2 had been targeted toward those Americans with African ancestors, the only thing that would have stopped a dissent from Scalia would be the 15th Amendment. The language is the same, but the scope is different. Scalia is not only a social conservative but also a judicial conservative. The power of the Court is to interpret law as narrowly as possible. Rather than issuing broad protections to classes that obviously face discrimination for no rational reason, the Supreme Court's job is subservient to the law-making power of Congress.

This is rather a strange policy for someone who supposedly understands the checks and balances of the U.S. government.

Scalia never dives under the surface of the law to the spirit of the law. He asserts that approval of homosexuality leads to the "piecemeal deterioration of sexual morality" (i.e., the nuclear family), but never presents any evidence. Perhaps he should take the next step, like the judges who recently struck down the Communications Decency Act, and investigate the issue objectively.

If that's the best he can do for objections, then I'm glad that the majority agreed that unfounded accusations reflecting insecurity and fear are not a valid basis for discrimination.

Amendment 2 - six out of nine U.S. Supreme Court Justices say no.

End Notes

1. The Court evidently agrees that "rational basis"--the normal test for compliance with the Equal Protection Clause--is the governing standard. The trial court rejected respondents' argument that homosexuals constitute a "suspect" or "quasi-suspect" class, and respondents elected not to appeal that ruling to the Supreme Court of Colorado. See Evans v. Romer, 882 P. 2d 1335, 1341, n. 3 (1994). And the Court implicitly rejects the Supreme Court of Colorado's holding, see Evans v. Romer, 854 P. 2d 1270, 1282 (1993), that Amendment 2 infringes upon a "fundamental right" of "independently identifiable class[es]" to "participate equally in the political process." Ante, at 4.

2. The Supreme Court of Colorado stated: "We hold that the portions of Amendment 2 that would remain if only the provision concerning sexual orientation were stricken are not autonomous and thus, not severable," 882 P. 2d, at 1349. That statement was premised, however, on the proposition that "[the] four characteristics [described in the Amendment--sexual orientation, conduct, practices, and relationships] are not truly severable from one another because each provides nothing more than a different way of identifying the same class of persons." Id., at 1349-1350 (emphasis added). As I have discussed above, if that premise is true--if the entire class affected by the Amendment takes part in homosexual conduct, practices and relationships--Bowers alone suffices to answer all constitutional objections. Separate consideration of persons of homosexual "orientation" is necessary only if one believes (as the Supreme Court of Colorado did not) that that is a distinct class.

3. The Court labors mightily to get around Beason, see ante, at 12-13, but cannot escape the central fact that this Court found the statute at issue--which went much further than Amendment 2, denying polygamists not merely special treatment but the right to vote--"not open to any constitutional or legal objection," rejecting the appellant's argument (much like the argument of respondents today) that the statute impermissibly "single[d] him out," Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. The Court adopts my conclusions that (a) insofar as Beason permits the imposition of adverse consequences based upon mere advocacy, it has been overruled by subsequent cases, and (b) insofar as Beason holds that convicted felons may be denied the right to vote, it remains good law. To these conclusions, it adds something new: the claim that "[t]o the extent [Beason] held that the groups designated 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." Ante, at 12-13. But if that is so, it is only because we have declared the right to vote to be a "fundamental political right," see, e.g., Dunn v. Blumstein, 405 U. S. 330, 336 (1972), deprivation of which triggers strict scrutiny. Amendment 2, of course, does not deny the fundamental right to vote, and the Court rejects the Colorado court's view that there exists a fundamental right to participate in the political process. Strict scrutiny is thus not in play here. See ante, at 10. Finally, the Court's suggestion that Section 501 of the Revised Statutes of Idaho, and Amendment 2, deny rights on account of "status" (rather than conduct) opens up a broader debate involving the significance of Bowers to this case, a debate which the Court is otherwise unwilling to join, see supra, at 6-9.

End notes

1. see Peter Irons' The Courage of their Convictions, Penguin Press, 1990, p. 385.

2. In fact, they explicitly holds this to be "no longer good law": Romer v. Evans (USSC 94-1039), majority opinion, p. 13.

3. Ibid., p. 14

Last updated 18 December 2000
Rebuttal ©1996-2002 Mark L. Irons

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