Über die Autorin bzw. den Autor

Von der hinteren Coverseite

Aus dem Klappentext

Auszug. © Genehmigter Nachdruck. Alle Rechte vorbehalten.

The Gay Rights Question in Contemporary American Law

By Andrew Koppelman

University of Chicago Press

Copyright © 2002 Andrew Koppelman
All right reserved.
ISBN: 0226451011
CHAPTER ONE - EQUAL PROTECTION AND INVIDIOUS INTENT

Laws that discriminate against gays will always be demonstrably rational, because such laws will always further the states legitimate moral objection to homosexual sodomy. Thus teaches Bowers v. Hard-wick. Laws that discriminate against gays will always be constitutionally doubtful, however, because they will always arouse suspicion that they rest on a bare desire to harm a politically unpopular group. Thus teaches Romer v. Evans. Both of these teachings are coherent, and neither of them is necessarily inconsistent with the other. They leave the courts, however, with a doctrinal dilemma that has no obvious solution.

In order to sustain this claim, I must defend the reading of Romer just stated. This puts me into a thicket of constitutional argument. The scholarly reaction to Romer was remarkable. The Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment was violated by an amendment to the Colorado constitution that prohibited antidiscrimination protection of gays, because the amendment seems inexplicable by anything but animus toward the class that it affects. The Courts inference of unconstitutional animus was central to its holding, but almost no scholar who read the opinion was willing to believe that this was what really was going on.

In this chapter, I will argue that Romer is defensible in the terms in which it was decided. The opinion is concededly puzzling. There are, as Lynn Bakerhas observed, missing pages. I will try to supply those pages, and to explain why they were absent from the opinion, without throwing away any of the pages that are there. I will offer a parsimonious defense of the decision, discarding as little as possible of the reasoning actually set forth by the Court and adding as little as possible that the Court did not say.

Romer is a case about impermissible purpose. It fits quite comfortably into a body of doctrine that has made purpose fundamental to the adjudication of equal protection claims. The missing pages can easily be filled in by the reader, who need only take note of the hatred and stereotyping of gays that has been ubiquitous in American culture for a long time. Once this obvious cultural fact is recognized as part of the context in which the Colorado amendment was enacted, then the Courts attribution of invidious purpose to the law makes eminent sense.

The filling of this ellipsis has implications that go well beyond Romer. The Courts opinion implicitly invokes a defect in the political process that contaminates, at least to some extent, all laws that discriminate against gays. But that contamination implies that laws discriminating against gays should be presumptively unconstitutional. The principal doctrinal obstacle to this conclusion is Bowers v. Hardwick, which held that a state can have a legitimate moral interest in prohibiting homosexual conduct. Hardwick established that a state will always have an innocent explanation for a law that discriminates against gays. Romer implicitly recognized that the widespread animus against gays (which is not the same thing as moral objection to homosexual conduct) undermines, to an extent that is hard to determine, the credibility of such explanations. The constitutional status of laws that discriminate against gays, therefore, is uncertain after Romer.

Begin by looking at the bare bones of what the Court said. Romer involved an amendment to the Colorado constitution (referred to on the ballot as Amendment 2), which provided that neither the state nor any of its subdivisions could prohibit discrimination on the basis of homosexual, lesbian or bisexual orientation, conduct, practices or relationships. In his opinion for the court, Justice Kennedy observed that the Amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group. This was unusual, and called for careful consideration to determine whether [this law was] obnoxious to the constitutional provision. The state defended the law by citing respect for other citizens freedom of association, and in particular the liberties of landlords or employers who have personal or religions objections to homosexuality. The amendment, however, was [n]ot confined to the private sphere. The state also cited its interest in conserving resources to fight discrimination against other groups. The amendment, however, seemed to deprive[ ] gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. Such a universal license to discriminate against gays would compound the constitutional difficulties the law creates. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. The Court thus felt compelled to conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. The broad disability imposed on a targeted group raise[d] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. [I]f the constitutional concept of equal protection of the laws means anything, it must at the very least mean that a bare... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Romers rule of decision may thus be summarized: if a law targets a narrowly defined group and then imposes upon it disabilities that are so broad and undifferentiated as to bear no discernible relationship to any legitimate governmental interest, then the court will infer that the laws purpose is simply to harm that group, and so will invalidate the law.

How defensible is this inference? Justice Scalia thought that, so far from manifesting a bare desire to harm gays, the amendment was rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. The Courts portrayal of Coloradans as a society fallen victim to pointless, hate-filled gay-bashing is so false as to be comical.

Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensiblemurder, for example, or polygamy, or cruelty to animalsand could exhibit even animus toward such conduct. Surely that is the only sort of animus at issue here: moral disapproval of homosexual conduct.. . .

The inference of impermissible motive, he thought, was therefore uncalled for. The Courts opinion disparaging as bigotry adherence to traditional attitudes, Scalia concluded, was nothing short of insulting.

Whether the Court correctly decided Romer (at least, according to the rationale on which the Court relied) would seem to depend on whether the Courts inference of animus was justified. As Scalias response shows, however, any answer to that question is likely to rest on an unspoken response to other, and more fundamental, questions: why does motive matter, and what sort of motivation renders a law unconstitutional under the Equal Protection Clause of the Fourteenth Amendment? Only after we have determined just what animus is prohibited, and why it...