David Frum’s normally acute legal mind fails him in his discussion of Romer v. Evans. In two important ways, he misses the decision’s thrust.
“Colorado is permitted to treat all sorts of people unequally,” he notes. ” It can build a highway to one town but not another.” Of course that is true. But Frum here misses the distinction that underpins the majority opinion. It is one thing not to build a highway to, say, Aspen. It is another to pass a constitutional amendment saying that Aspen, alone among all Colorado cities, may have no highways built to it, not even highways built at the locals’ own initiative and expense. Surely many reasonable courts would take a dim view of such a law if it were based on nothing more than the state’s dislike of Aspen.
Ah, says Frum, but disapproval of homosexuals as opposed to “suspect class” minorities or, perhaps, people living in Aspen is constitutionally sanctioned, because in Bowers v. Hardwick the Supreme Court upheld laws against homosexual sodomy. “Colorado could, if it wanted to, outlaw homosexual acts entirely, in much the same way that it can outlaw marijuana smoking.” True. But again Frum misses Justice Kennedy’s point, which is that Colorado’s Amendment 2 was far broader than could be rationally justified by a desire to curtail sodomy.
The amendment banned anti-discrimination laws based on homosexual ” orientation, conduct, practices, or relationships.” Effectively, it targeted anyone who could be spotted as a homosexual, whether that person committed any particular sex act or not.
I grant that open homosexuals are likelier to engage in homosexual conduct than heterosexuals. But Justice Kennedy was not unreasonable in insisting that identifying and fencing off a class of persons cannot properly be viewed as “rational” if it is based merely upon aversion to the class itself, rather than upon the behavior of individuals. The truth, of course, is that Amendment 2 was not saying, “Don’t commit sodomy.” It was saying, “If you’re a homosexual, shut up about it.”
JONATHAN RAUCH, WASHINGON, DC
