Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

A Shield, not a Sword

Luis Lugo


May 27, 1996

The Supreme Court last week struck down an amendment to the Colorado Constitution that would have denied protected status based on people's homosexual, lesbian, or bisexual orientation. The state had argued that the measure, known as Amendment 2, does nothing more than deny homosexuals special civil rights protections, but the majority in Romer v. Evans saw things quite differently. By a 6-3 vote, it concluded that the amendment served no legitimate legislative end, that it was driven purely by animus toward homosexuals, and that it would deny a whole class of people the equal protection under the law to which every citizen is entitled.

The minority opinion, delivered with great passion by Justice Antonin Scalia, took serious exception to the ruling. Scalia maintained that no principle set forth in the Constitution prohibits what Colorado had done, and pointed out that only ten years before the Court had ruled, in Bowers v. Hardwick, that there is no constitutional prohibition against states making homosexual conduct a crime. If that is constitutionally permissible, he asked, how could it not be permissible for states to pass laws merely disfavoring homosexual conduct? As a matter of fact, he continued, Amendment 2 does not disfavor homosexuals but only denies them preferential treatment. This may or may not be good public policy, he stated, but that is an issue that must be resolved by normal democratic means and not by judicial fiat.

On the constitutional argument, Scalia seems to have the upper hand, but the question remains: to what legal safeguards, if any, are citizens who are practicing homosexuals entitled? At one level the answer is straightforward—they should be entitled to the same protection under the law as any other citizen. That does not necessarily mean that we must support the repeal of laws that make homosexual behavior a crime, though one can indeed favor the elimination of such laws even while believing that the behavior in question is both sinful and socially harmful.

The issues raised by this case go beyond the question of criminalization, however. It should be noted that Colorado was among the first states to repeal its anti-sodomy laws. Yet it is obvious, judging from Amendment 2, that its citizens also want to make clear that eliminating criminal sanctions against homosexual acts should not be interpreted as lending moral or social support to homosexual lifestyles, much less granting them special legal protection. They sought to accomplish this by denying homosexuals a special status that would entitle them to civil rights protections based on the assertion of group identity. Colorado's overall message seems to be this: we will extend common legal protections to all citizens, including practicing homosexuals, but we will not grant homosexuals as a group special status under the law.

If that indeed was the intent, then it seems to me that Colorado got it just about right. All citizens should be protected; however, major legal consequences inevitably follow when we extend civil rights protections to specific groups. What we must understand is that anti-discrimination laws are a remedial tool whose provisions are broadly construed by the courts and in which the burden of proof shifts in dramatic fashion. In essence, such laws come to function not as a shield against abuses but as a sword used by the favored group to force major changes on the institutions of civil society. If you doubt that such a cultural agenda is at play in the homosexual community, take a good hard look at efforts currently underway to redefine the institution of marriage so as to include same-sex unions.

—Luis E. Lugo, Associate Director
   Center for Public Justice

“To respond to the author of this Commentary please email:
Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”