Note: On May 20, the Supreme Court found Colorado's anti-gay Amendment Two unconstitutional in a 6-3 decision. Click here to read statements on the decision from various gay and pro-gay groups.
NEW YORK -- The victory in the Supreme Court abolishing Colorado's unconstitutional Amendment 2 "reverberates through Lambda's docket and will affect all cases involving discrimination against lesbians and gay men," said Beatrice Dohrn, Legal Director of Lambda Legal Defense and Education Fund in analyzing the potential impact of Romer v. Evans.
Lambda, the country's oldest and largest gay legal rights organization, released a list of specific issues that exemplify potential applications of the Supreme Court's May 20 decision.
"Romer will be a powerful weapon in Lambda's legal arsenal on behalf of lesbians, gay men, and people with HIV and AIDS," Dohrn said Friday. "Directly and indirectly, this week's 6-3 ruling works a profound change in the battle for civil rights by stating that the Constitution forbids singling out lesbians and gay men for discrimination."
Dohrn stressed, "When it comes to securing lesbian and gay civil rights, Romer is a very good start. Now we must go on to secure the legal protections that Amendment 2 sought to preempt."
Bowers v. Hardwick Blunted
Sodomy laws like Georgia's are still on the books, Dohrn said in addressing the 1986 Bowers v. Hardwick ruling that upheld the arrest of an Atlanta man in his bedroom where he was having sex with another man. "Some of the worst impact of Hardwick will be blunted by the Court's clear statement that anti-gay sentiment is not a permissible rationale for law. The Court greatly limited Hardwick's holding that moral disapproval of homosexuality' was sufficient to justify government action," said Dohrn, adding that for a decade, lower courts have cited that decision to justify a plethora of unrelated anti-gay rulings.
Lambda Executive Director Kevin Cathcart commented on Justice Antonin Scalia's dissent in the case. "Scalia's harsh and ugly words may have helped push the majority to six of the nine justices," Cathcart said. "His tone, from his use of the German term "Kulturkampf" to the allegation that gay people are disproportionately influential, echos what is plain in the content of the dissent: his opinion is on the extreme political right and outside of the mainstream of this country." Cathcart added, "We are celebrating signs that, on gay equality, the center is with us."
How Supreme Court Ruling in Romer v. Evans Should Affect Gay Rights Litigation:
Anti-Gay Ballot Initiatives
Other anti-gay ballot initiative cases certainly will feel the effect of Romer. Most immediately, Equality Foundation v. Cincinnati, challenging an amendment banning any discrimination protection laws in Cincinnati for lesbians, gay men, and bisexuals, is awaiting a Supreme Court ruling on a certiorari petition. "Cincinnati's amendment is a clone of Colorado's, and we expect the Court to send it, dead on arrival, to the Sixth Circuit," said Patricia Logue, managing attorney for Lambda's Midwest Regional Office and co-counsel on the case along with Lambda's Suzanne Goldberg, the ACLU of Ohio, and attorneys Alphonse A. Gerhardstein and Richard Cordray.
Morris v. Hill, challenges a ban by Florida's Alachua County that prohibits discrimination based on sexual orientation. Despite the text's differences from Colorado's Amendment 2, Florida courts are likely to recognize this measure as unconstitutional under Romer for intending to limit the political rights of gay people.
Many federal, state and local government agencies continue to treat HIV disease differently than other disabilities in employment and program eligibility criteria. "Much discrimination against people with HIV has homophobia at its root, and the reasons offered to justify limiting or excluding the participation of people with HIV in government jobs and programs, such as the military and the Job Corps, have been every bit as irrational and unsupported as proffered bases to exclude gay men and lesbians, "said Catherine Hanssens, director of Lambda's AIDS Project. "Unsupportable assumptions about the health and safety risks that people with HIV pose in the workplace and in places of public accommodation could be prohibited under the Romer majority's equal protection-rational basis analysis," Hanssens added.
Likewise, Romer further strengthens arguments against revived efforts in the House of Representatives to include a provision in the next Defense Authorization Bill which would require the discharge of people with HIV as well as of gay men and lesbians.
Able v. U.S., challenges the military's "Don't Ask, Don't Tell" ban on gay service members, arguing the ban is based solely on the government's desire to accommodate the dislike and discomfort of those who do not want to serve with lesbians and gay men. Romer firmly rejects laws in which "the disadvantage imposed is born of animosity toward the class of persons affected." Said Dohrn, co-counsel with the ACLU in the case pending in the 2nd Circuit Court of Appeals, "Our challenge now is to persuade the courts examining the "Don't Ask, Don't Tell" policy that it is based entirely on prejudice and personal discomfort toward gay people."
Romer states that "Laws singling out a certain class of citizens for disfavored legal status or general hardships" cannot survive even minimal equal protection scrutiny. Right now, legislation is pending before Congress that would create two classes of lawful marriage, with the federal government withholding benefits from marriages of gay people that any state lawfully recognizes. "This anti-gay effort to create two classes of lawful marriage is precisely a classification of persons undertaken for its own sake,'" said Evan Wolfson, Lambda senior staff attorney and director of Lambda' Marriage Project. "We hope Romer will help in our efforts to demonstrate this."
Youth and Schools
Romer also will support Lambda's ongoing work on youth issues. For example, in Nabozny v. Podlesny, the first case in the country to challenge anti-gay violence in schools, the principal of the school responded to Jamie Nabozny's four-year ordeal by saying Nabozny "should expect such abuse if he's gay." David Buckel, Lambda staff attorney and co-counsel with Logue on the case, said, "With that response, the principal was expressing the very societal prejudice that Romer says cannot be the basis for treating gay people differently." The 7th Circuit Court of Appeals is expected in coming months to rule on Lambda's arguments in the case.
The Utah Legislature's attempt to ban student clubs, after students formed a group to respond to anti-gay beatings, is likely to be challenged by Lambda and other legal organizations. Said Jon Davidson, Lambda's supervising attorney for its Western Regional Office, "Romer hits home in Utah, where the legislature made a law based on dislike of a gay-identified group and the targeted group was a bunch of well-meaning high school kids trying to stop beatings that reflect that kind of dislike."
"Sodomy" Law Challenges
Campbell v. Sundquist, a challenge to Tennessee's "Homosexual Practices Act," currently before the Tennessee Supreme Court, singles out and imposes criminal penalties on gay people for engaging in particular sexual acts. "Romer should help undermine Tennessee's defense of this law and aid challenges to other "sodomy" prohibitions, particularly in the six states that prohibit only same-sex sexual conduct," said Lambda Staff Attorney Suzanne Goldberg.
Custody and adoption
Subjective decisions of judges cloaked as objective assessments of what is in a child's best interest have made bias and prejudice against lesbians and gay men especially difficult to root out in this area. In Schroeder v. Schroeder, for example, a judge ignored evidence that two children were doing well in the care of their mother and her female partner and removed the children because of he possibility of "social condemnation" and "social comment." "Romer reinforces arguments that government cannot empower private prejudice by letting it decide basic civil rights," said Logue, who represents the mother in the case, which is being appealed to the Appellate Court of Illinois for the Third District.