Jun 3, 1996, Vol. 1, No. 37 • By DAVID FRUM
WHATEVER ELSE IT ACCOMPLISHES, Justice Anthony Kennedy's opinion in the Colorado gay-rights case isn't going to win a niche in the Legal Reasoning Hall of Fame. In fact, the decision is so illogical one wonders whether it deserves to be called "reasoned" at all.
It would be bad enough if the weakness of Justice Kennedy's decision in Romer v. Evans could be blamed on the judge's intellectual shortcomings. The truth is even worse: It's not that the judge doesn't know enough about law, but that he knows too much about politics.
Despite what the newspapers say, the Colorado gay-rights law at issue in Romer in no way penalized or burdened homosexuals in the state of Colorado. Colorado legalized private consensual homosexual acts among adults in 1971, ahead of New York and California. Colorado homosexuals enjoy the same right to speak their minds, worship freely, own property, sign contracts, and bear arms as any other Coloradans. Beginning in the late 1970s, though, some Colorado towns -- notably Aspen and Boulder -- went further: They passed local ordinances forbidding their residents to discriminate on grounds of sexual orientation.
Now, the normal rule in the United States is that citizens can do business - - or refuse to do business -- with anyone they please. If an automobile dealer believes that former athletes make the best car salesmen, he can hire himself a whole car lot full of them. If a landlady believes that prospective tenants who wear Nirvana T-shirts are likely to trash her premises, she can close the door in their faces. To this general rule, however, there are exceptions. You cannot refuse to deal with someone because of his or her race, religion, sex, age, or handicap.
The courts call these "suspect categories." People who feel unfairly treated because of their race, their sex, their age, or their handicap enjoy a remarkable privilege under American law: They can obtain redress when someone refuses to do business with them because of their identity. Theoretically the protections of anti-discrimination law are available to all members of the category: to whites as well as to blacks, to men as well as to women, to the middle-aged as well as the old. But as a practical matter, these laws mainly benefit racial minorities and women.
Unfortunately, race, sex, age, and handicap are not the only wellsprings of unfair treatment. Smokers, nonathletes, the short, the fat, the bald, people who don't happen to be relatives of the boss all often find themselves deprived of advantages that they might otherwise have obtained. They, however, must take their chances in the marketplace. We may condemn the employers who don't hire them; but we don't punish them.
Proposition 2, the amendment to the Colorado constitution ratified in 1992 by 53 percent of the voters in a statewide referendum, told Colorado's towns and state legislators that sexual orientation was to be treated in law like smoking and not race. Prop 2 did not say Coloradans could be punished for being gay; it said Coloradans could not be punished for disapproving of gays.
What Justice Kennedy wanted to do in Romer v. Evans was void Proposition 2 without declaring sexual orientation a "suspect category" under the Fourteenth Amendment. Such a declaration would have ignited a political firestorm -- one that might have upended the 1996 elections and quite probably wobbled the authority of the Supreme Court itself. Kennedy needed instead to reach his radical result by a less dangerous route. But what could it be?
Kennedy got to his desired destination in two steps. His first problem was to prove that by refusing to punish anti-gay Coloradans, Colorado was treating homosexuals unequally. That problem was not a small one. To the naked eye, after all, it looks as if Proposition 2 treats Colorado's homosexuals the same as everybody else, except for those who happen to belong to suspect categories. If Anthony M. Kennedy lived in Colorado and a landlady refused to rent an apartment to him, he would have no recourse. That is exactly the situation most non-black, non-female Coloradans face, whether they be homosexual or heterosexual. How is it a denial of equal protection to refuse to grant a group the privilege of special scrutiny?