Should the courts deliver gay civil rights?

Courtroom Three, on the second floor of the Denver City and County Building, is a neoclassical jewel, with its mustard walls and gray Vermont marble and polished oak backboard. It is a platonic ideal of a courtroom, which is perhaps why Viacom commandeered it in the mid-1980s to film several episodes of the new "Perry Mason." At the producers' behest, local architects installed a pair of ornate, but scarcely functional, beaux arts chandeliers; and their dim orange glow makes it hard for the judge to see the witnesses without squinting. "There is never enough light in this courtroom," the Honorable H. Jeffrey Bayless complains repeatedly during the trial of Colorado's anti-gay rights amendment. "In this courtroom, there is darkness everywhere."

Transcripts of the trial will be pored over for years by supporters and opponents of homosexual rights, and by connoisseurs of judicial burlesque. But halfway through the eight-day trial, as the state of Colorado begins to argue that its citizens have a compelling interest in treating homosexuals differently than heterosexuals, only six members of the press have turned up; the bailiff unexpectedly ushers us into the well-appointed jury box. In front of us are two large documents: on the wall, a framed, gilded copy of the U.S. Constitution; on an easel by the witness stand, a blown-up version of Amendment 2 to the Colorado Constitution, ratified by 53 percent of Colorado's voters on November 3, 1992:

NO PROTECTED STATUS BASED ON HOMOSEXUAL, LESBIAN OR BISEXUAL ORIENTATION. 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, any claim of minority status, quota preferences, protected status or claim of discrimination.

The legal question, put simply, is whether the second document can be reconciled with the first. But legal questions scarcely seem relevant to the spectacle that is unfolding before us. Instead, both sides have called a parade of moral philosophers, classical historians, political scientists, solemn geneticists and think tank pamphleteers. All of the arguments about homosexuality that were presented to the voters of Colorado are now being rehearsed before Judge Bayless, a conscientious but bewildered local jurist whose usual docket consists of small-time contract disputes between Denver merchants. The baffled expression on his bland, pink face is an emblem for more general concerns about whether courts are competent to resolve the legal status of homosexuals in any kind of a principled way.

"The Honorable Denver District Court is now open for business!" At exactly 8:30 on Monday morning, Bayless is escorted to the bench and the lawyers take their seats. The solicitor general of Colorado, Timothy Tymkovich, is a tall, mild-mannered Republican, whose twitching brush mustache brings to mind the young Neville Chamberlain. His two associates are coarser: Jack Wesoky, a bald, gangsterish character in a white linen, double-breasted blazer and gray zoot-suit pants, and Gregg Kay, who wears a rat-tail haircut and a permanent sneer. The plaintiffs' lawyers are Gregory Eurich, an earnest and intense Denver trial lawyer; Jean Dubofsky, a former Colorado Supreme Court justice with the deliberate manner of Sandra Day O'Connor; and Jeanne Winer, a small, serious lesbian with straight black hair. Behind Eurich and Dubofsky sit their assistants, Natalie Bocock Turnage and Roderick Hills, who are also--full disclosure--my law school classmates and hosts for the trial.

The state's first witnesses, Tony Marco and Kevin Tebedo, are the authors of Amendment 2 and co-founders of a group called Coloradans for Family Values. Marco was, in the 1960s, a Marxist-Leninist who wrote a narrative song in forty-seven verses attacking the religious right and who shared an apartment with a gay man whose lover started the Stonewall riot. After a religious conversion, he became a direct mail fund-raiser for the Christian Broadcasting Network; now he and his wife try to persuade homosexuals to change their sexuality through a group called Dovetail Ministries. Tebedo insists "there was a lot of religion in the debate, but it all came from the opponent's side." On cross-examination, however, Winer confronts him with a campaign speech that he delivered at the First Congregation Church in Colorado Springs; and when Tebedo denies having made it, she presses a button on her tape player and his words come crackling over the speaker:

Now the authority of man would dictate that homosexuality is perfectly o.k., that there's nothing wrong with it. The authority of God says no, that there is plenty wrong with homosexuality. From a moral, ethical, societal, governmental and political standpoint, in the eyes of Almighty God and the authority of His Word, homosexuality is an abomination to Him.

Tebedo and Marco have the manic appeal of authentic believers. The self-styled experts who follow, by contrast, come across as plastic apparatchiks. Robert Knight, the "Director of Cultural Studies" at Gary Bauer's Family Research Council, poses as an expert in the "media activities of the gay community." ("Having been on the `Jerry Springer' show," he declares from the stand, "I have to conclude that these afternoon talk shows are overwhelmingly stacked toward the pro-gay viewpoint") Terry Schleder, head of Boycott Colorado, is called as an adverse witness. She wears a melodramatic gray paper dog collar and chain around her neck, to symbolize the enslavement of gays and lesbians.

The most distinguished witness for the defense is Harvey C. Mansfield Jr. of Harvard, the political theorist and translator of Machiavelli. Razor-thin and elegant, with his tailored blue suit, unnaturally youthful face and insinuating whisper, Mansfield is treated like a revered and expensive objet d'art by the state's lawyers, who are paying him $200 an hour. His testimony goes something like this: the initiative and referendum are products of the progressive era (here he winces slightly), designed to counteract the distance that the founders had established between the people and their representatives. Amendment 2 was designed to reduce the influence of factional local majorities; it promotes a "live and let live" policy that presents the least intrusive invasion into our lives and morals.

On cross-examination, Eurich approaches the stand with the relish of Darrow approaching a more dapper version of Bryan. Hadn't Mansfield said in his deposition: "Disapproval of gays is not like racial or gender discrimination; there is nothing wrong with being black or being a woman, but it is perfectly reasonable to think there is something wrong with being gay"? Mansfield, rubbing his eyes, confesses he had indeed said this. "Have you ever made an academic study of whether gays are happy?" "I've read … Plato, Freud and Tocqueville. I had a conversation with a gay student once. Being gay is not a life that makes for happiness." "You said that gays were not socially responsible, didn't you?" Mansfield smiles and answers, "I was referring to their inability to raise families." "Is a person with two children more socially responsible than a person with one?" "In that regard, yes, although you might have a socially responsible reason for not having more than one child." "You said that you regard homosexual sex as shameful. But you think the same practices by heterosexuals are shameful, too, isn't that correct?" Shame and sex go together, Mansfield replies, blushing. "The question of shame is always involved in sex." Eurich leans in triumphantly. "And you believe that the view that homosexuality is respectable would undermine human civilization, isn't that right?" Mansfield slumps back in his chair and whispers with weary resignation: "Eventually."

Even more lurid debates are carried out in affidavits. Robert George of Princeton calls the testimony of Martha Nussbaum of Brown "almost totally misleading" because she translates the word tolmema, Plato's adjective for homosexuality, as "deed of daring," or "adventure," rather than "abomination." Edward Eichel, author of a 1992 monograph called The Perfect Fit, swears that the juxtaposition of male and female genitalia has the potential for unique fulfillment through what he calls the Coital Alignment Technique. "The male same-sex experience," by contrast, "often escalates to anonymous and compulsive sexual behavior." On the last day of the trial, the state withdraws his affidavits without explanation.

Finally, the satyricon ends. The closing arguments are blissfully quiet and legalistic. Dubofsky suggests that if the words "members of the African American race" or "left-handed people" were substituted for "homosexual, lesbian or bisexual orientation," there would be no question that Amendment 2 is unconstitutional. "I feel like we're engaged in this trial in the Monday morning quarterbacking of an election campaign," says Tymkovich. "This court should not rest public policy on the gossamer strands of scientific testimony.… All Amendment 2 says is that we need to resolve this issue through the democratic process, after great deliberation, at the constitutional level." We are in recess, says Judge Bayless; and both sides shake hands, very gingerly.

"More interesting than the hollow buffoonery that remains will be the effect upon the people of Tennessee, the actual prisoners at the bar," H.L. Mencken wrote of the Scopes trial in 1925. "If the state is to be saved at all, it must be saved by the courts." But whether the courts have any business saving the people of Colorado is a more vexing question. The spectacle in Denver suggests, at the very least, that the efforts of gay rights advocates to win heightened judicial scrutiny for homosexuals is a treacherous path. There are three main legal theories for why laws against homosexuals should be rigorously reviewed by the courts: the suspect class theory; the political participation theory; and the sex discrimination theory. None of them is entirely persuasive. Suspect Class Status: The Supreme Court currently recognizes six suspect classes under the Constitution (race, sex, national origin, ancestry, alienage and illegitimacy); and to discriminate against these groups, the state must satisfy the most rigorous standards of judicial review--that is, it must supply compelling reasons. To be added to this list, the Court has held, groups must demonstrate a series of characteristics, including political powerlessness; a history of discrimination; and obvious or immutable distinguishing characteristics. One of the unfortunate legacies of the Denver trial was Judge Bayless's decision to hear empirical testimony on the suspect class question, rather than simply reasoning by legal analogy as the state requested. So the entire panoply of arguments--with their whiff of the 1930s--came tumbling out: "As a group they're highly educated; they're extremely affluent; and if anyone says they're not politically powerful, I'd like to sell them a used car," Wilfred Perkins, the chairman of Coloradans for Family Values, told me in an interview at Perkins Fast Lube, his Chrysler dealership in Colorado Springs. "And how do you know what a homosexual looks like? One of the most effeminate guys I know is married with five kids." The same arguments were rehearsed, with empirical support, on the stand.

In trying to respond to these crude but powerful generalizations, Eurich and Dubofsky faced an uphill struggle. Because homosexuals have successfully constructed a formidable political organization, and operate at the highest--and lowest--levels of society, the characteristic of political powerlessness is highly contested. And since the whole notion of homosexuality as such is relatively recent, discrimination has historically focused on activities, rather than on persons, which makes it hard to prove a legacy of disadvantage. And the complex way in which homosexuality occurs in human beings--by general consensus a mixture of nature and nurture--has made it difficult to talk easily of "immutable" characteristics. In all these respects, nevertheless, homosexuals may have a stronger case for suspect class status than some of the minorities currently recognized as suspect, such as aliens. But the emotions the subject provokes and the lateness of the attempt to have homosexuals included have made the theory, in practice, hard to sell. No federal circuit has accepted the suspect class argument so far; and as the trial progressed, even Eurich and Dubofsky began to recognize it as a loser.

Political Participation: In its first ruling on the case last August, the Supreme Court of Colorado held that Amendment 2 violates gay voters' fundamental right to political participation by preventing them from lobbying local and state legislators for protection from discrimination. (The right to political participation is not mentioned in the Constitution; but the Warren Court invoked it in several cases involving election requirements for blacks in the 1960s.) Bayless is required to apply the political participation theory when he rules on Amendment 2, which means that he will probably strike it down as unconstitutional. But the theory is unlikely to convince the justices of the Rehnquist Court, who have traditionally given states broad discretion over their political structures.

Moreover, there are many provisions in the Colorado state constitution that withdraw particular issues from ordinary political debate, such as the amendment that prohibits legislators from holding the 1976 Olympics in Denver; or the one that prevents Mothers Against Drunk Driving from lobbying for compulsory Breathalyzer tests. Supporters of Breathalyzer tests, and supporters of gay rights, are free to fight for the repeal of the amendments through the initiative process. But if a group could claim to be disfranchised every time it loses a constitutional amendment debate, then most state constitutions would be called into question.

Sex Discrimination: This theory, proposed by Andrew Koppelman of Princeton and Sylvia Law of NYU, is the most quirkily interesting of the three; and it's the one that prompted the Supreme Court of Hawaii to strike down a ban on gay marriages last May. Laws that permit women to marry men but forbid women from marrying women are, the court held, a form of sex discrimination. The argument that marriage by definition can only be entered into by people of different sexes is the same kind of argument as that used in miscegenation cases. In the 1964 McLaughlin case, the Supreme Court said that miscegenation laws that forbid blacks and whites from marrying each other are unconstitutional, even though they are based on long-standing custom and moral disapproval, because they promote stereotypes about white supremacy. Relying on the equal rights amendment in the Hawaii Constitution, the Hawaii Court suggested that banning gay marriages, similarly, reinforces stereotypical gender roles.

If the Hawaii court's interpretation of the Hawaii Constitution is not overturned by the voters, or reconsidered by the Hawaii justices, it cannot be disturbed by the U.S. Supreme Court. The Denver plaintiffs are relying on the sex discrimination theory to argue that Amendment 2 denies civil rights protection on the basis of sex. Although the theory might appeal to Ruth Bader Ginsburg, it requires a degree of sociological abstraction that is open to question.

The effort to win special judicial protection for sexual orientation seems, in short, a hazardous affair. Should courts, therefore, defer entirely to the political process on the question of homosexual rights? Not necessarily. Rather than seeking special judicial protection for homosexuals, the aclu and other gay rights advocates are increasingly arguing that certain forms of discrimination are irrational on their own terms.

Courts are properly reluctant to conclude that the state's post hoc reasons are irrational; and so the "rational basis" test is traditionally very easy for the state to satisfy. In the past year, however, three federal courts have struck down the exclusion of gays from the military under the rational basis test. Even if homosexuals actually do threaten "unit cohesion" and Navy recruitment, the Dahl court held in California last August, this is only so because some heterosexuals fear and disapprove of homosexuals. Their moral disapproval, the court held, is directly analogous to the "negative attitudes" of local property owners toward the mentally retarded, which the Supreme Court invalidated in 1985 as a form of "private bias" and "illegitimate prejudice."

In light of the judiciary's traditional deference to the military, it seems unlikely that these decisions will stand up on appeal. But the jurisprudential insight--that laws discriminating against homosexuals should have to be justified with rational arguments rather than irrational anxieties--may be stronger in the context of Amendment 2. For it is at least arguable that Colorado has failed to provide rational reasons for preventing homosexuals from seeking the protection of civil rights laws that already protect not only blacks, women and religious minorities, but also smokers, the handicapped and unmarried heterosexuals.

There are, of course, perfectly rational arguments--and they were heard in Colorado--against homosexual sex. But these arguments, almost all of them deriving from Roman Catholic or natural law traditions, are directed against homosexual acts, not people, and should extend to nonprocreative sex by heterosexuals as well. By this logic, however, the laws of Colorado are not rationally consistent. The fact that single people are protected makes it hard to argue that the voters of Colorado have a general moral aversion to nonprocreative sex. A high point of the trial was Robert George's announcement that landlords should be free to refuse to rent apartments to people who masturbate or use contraception. On cross-examination, however, George was forced to concede that housing discrimination against masturbators is illegal in Colorado; and that few Colorado voters appear to share his rigorously consistent, Thomist views.

The state presented no rational arguments against homosexuals as such; and anti-homosexual legislation directed at individuals rather than activities is arguably based on personal aversion rather than moral argument. Also, if judges must roll over every time the state incants the "M" word, judicial review would mean very little. Perhaps a slim Supreme Court majority could be persuaded to draw a clean line between private bias, and legislation aimed more generally at public welfare, such as the bar admissions standards in Colorado, which define good moral character in terms of honesty and probity.

Apart from moral aversion, are there other rational reasons for Amendment 2? The medical justification--that the state has an interest in discouraging homosexual behavior because it is a danger to public health--is undermined by Colorado's decision to protect the civil rights of smokers. Then there is the widespread fear that in an age where the line between negative and positive discrimination has been increasingly blurred, protecting homosexuals from discrimination will lead, inexorably, to affirmative action. But a more rational response to this fear would be to ban quotas.

A member of the Colorado Civil Rights Commission testified that adding homosexuals to the civil rights laws would divert resources from traditionally protected classes, such as blacks and women. But Jerome Culp of Duke Law School responded that in cities that prohibit anti-gay discrimination, the complaints generally make up about 3 percent of the total case load. A black pastor from the Second Baptist Church in Boulder, quoting Romans 13 in stentorian tones, testified that Amendment 2 would safeguard the religious liberty of churches, which prefer not to hire homosexuals. But rather than prohibiting all legal protections for homosexuals, it would surely be more rational to require cities that choose to protect gay rights to carve out an exception for churches, and small landlords, as Title VII of the Civil Rights Act does.

Finally, the state argues that denying civil rights protections for homosexuals protects the "psychological and physical well-being of children." The suggestion that "homosexuals are notorious practitioners of sex with minors" seems to be irrational: the Denver director of child advocacy testified that children are "100 times more likely to be molested by the heterosexual partner of a relative than by a gay or lesbian relative." But the broader notion--that the state has an interest in stigmatizing homosexuality to discourage children from becoming homosexual--isn't easily dismissed, given the uncertainty that continues to surround the psychological causes and effects of sexual orientation. Still, the anti-gay cohorts are on weak ground here themselves: if you believe (as they do) that homosexuality is a psychiatric disorder, discrimination against homosexuals might well be prohibited by the Americans with Disabilities Act.

Given the fact that the civil rights laws of Colorado now protect smokers and masturbators and virtually every other imaginable group, it is possible to imagine a judicial opinion that would strike down Amendment 2 under an unusually exacting (and frankly somewhat novel) rational basis test. It is even conceivable that five members of the U.S. Supreme Court might be persuaded by the argument--the four dissenters who emphasized in the Heller case last June that discrimination against the mentally retarded reflects irrational private biases, now joined, perhaps, by Justice Ginsburg. An opinion along these lines would look something like Reed v. Reed, the 1971 case in which Ginsburg exposed the inadequacy of the Court's existing legal categories, and convinced the justices to strike down as irrational a law preferring men to women as estate administrators.

The spectacle in Colorado, in which experts who were hardly expert lectured a judge who was scarcely qualified to judge, tends to rattle one's faith in the competence of the courts to second-guess the rationality of the state. Under the guise of modesty, this muscular rational basis test may indeed exalt judges to a potentially unsettling degree. And H. Jeffrey Bayless should never have set out to resolve the historical, ethical and scientific mysteries of homosexuality. Courts can, however, insist that distinctions among individuals are based on reasoned arguments rather than anxieties; and some arguments are more convincing than others.

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