SUSPECT JURISPRUDENCE

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?

Kennedy solved this problem by pointing out that sexual orientation was the only status that the Colorado constitution specifically mentioned as not to be recognized as a suspect category: “The amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation.” But what if the state had named smokers, the short, the unathletic, and the bald as groups of people who likewise should not be recognized as belonging to suspect categories? Would that have been acceptable?

Or what if Prop 2 had not named homosexuals? What if it had said instead that the only suspect categories to be recognized under Colorado law were those specifically mentioned in the U.S. Civil Rights Act of 1964 — and no others? Would it have been okay then?

Evidently not, but Kennedy’s opinion refuses to explain very clearly why not. Instead, Kennedy pounds away at the claim that gay rights are “special rights.” He contends that smokers, the short, the unathletic, and the bald don’t need to be singled out for special protection because they all expect to be treated fairly in the marketplace. Perhaps they do. Perhaps they do not. In any case, an expectation is not the same thing as an enforceable right.

But even if one accepts Kennedy’s claim that the refusal to grant special protection to Colorado’s homosexuals amounts to an unequal treatment, the justice would still only be halfway to his goal. Colorado is permitted to treat all sorts of people unequally. It can tax the owners of apartment houses at a higher rate than the owners of single-family dwellings; it can impose a sales tax on the sale of goods but not on the provision of services; it can build a highway to one town but not another. Virtually every act of legislation treats some people differently from others. They can’t all be unconstitutional.

To avoid potential chaos, modern American law has set three main ways that a state can fall foul of the Equal Protection clause. The first is by drawing distinctions between persons inside and outside a suspect category. Colorado didn’t do that since sexual orientation does not yet constitute a suspect category.

The second way to violate the Equal Protection clause is by treating people differently in the exercise of a fundamental right. Colorado could not constitutionally enact a law that taxes newspapers friendly to its governor less onerously than newspapers that oppose him, because the underlying activity — publishing — is protected by the First Amendment. But the underlying activity in Romer v. Evans is not at all a fundamental right. To the contrary, the Supreme Court ruled in 1986 that a state may, if it wishes, outlaw homosexual acts altogether. (Kennedy dealt with this awkward precedent by the simple if inelegant stratagem of flatly ignoring the 1986 case, Bowers v. Hardwick, which upheld the constitutionality of Georgia’s sodomy laws.)

That left only one last avenue for reaching the result Kennedy wanted. A state may not draw distinctions among its citizens, the case law says, if those distinctions are entirely irrational — that is, if they do not promote the attainment of some legitimate goal of public policy. That was the avenue Justice Kennedy took. He, along with Justices Breyer, Ginsburg, O’Connor, Souter, and Stevens, held that Proposition 2 was an act entirely without rational basis. And that, of course, is simply preposterous.

Colorado could, if it wanted to, outlaw homosexual acts entirely, in much the same way that it can outlaw marijuana smoking. Colorado has chosen not to use this power, just as the state of Alaska once chose not to proscribe the possession of small amounts of marijuana. Would any court argue that Alaska was acting “irrationally” by refusing to take the next step — by refusing to jump from legalizing marijuana to recognizing drug use as a suspect category? Is the Supreme Court really saying that states may rationally adopt only one of two policies toward homosexuality: either outright prohibition or else maximum legal protection?

Ironically enough, the initial effect of the Romer v. Evans decision is likely to be to discourage those states — 24 in all, plus the District of Columbia — that still outlaw private, consensual homosexual acts between adults from repealing their sodomy laws, as they should. Had Colorado retained its antique ban on homosexual acts, it could have offered an easy rejoinder to Justice Kennedy when he queried the rationality of Proposition 2. Proposition 2, Colorado could have said, would help the state to suppress unlawful sexual conduct over which the Supreme Court granted it full authority barely a decade ago. What could be more rational than that?

In the end, Romer v. Evans is a bad judgment because it is a dishonest one. In the minds of six Supreme Court justices, sexual orientation is already something very close to a suspect category. They just don’t dare say so. Instead, silently and stealthily, they will strike down local laws as if it were. And in doing so, they are proving that there is something worse than judicial arrogance: It’s judicial arrogance disguised by judicial cowardice.

by David Frum