Playing Defense in Colorado

The long-standing debate about the legitimacy of the Supreme Court’s constitutional rulings has recently been renewed with increased intensity. Traditionally, critics of the Court have charged that its decisions are too often “political” or “unprincipled” or “lawless.” The terms of the current debate, as developed in the pages of this journal and elsewhere, go further and raise the suggestion that the federal judiciary has made itself an active participant in a pervasive cultural struggle, a struggle involving fundamentally opposed moral worldviews.

This deeper dispute can be traced in part to Justice Antonin Scalia’s powerful dissent in Romer v. Evans , the 1996 case in which the Court struck down Colorado’s anti-gay rights measure known as “Amendment 2.” Scalia argued that voters had approved the amendment in an effort to preserve traditional moral values. And he charged that in denigrating this traditional morality as nothing more than “animosity” or “a bare . . . desire to harm,” the Court had taken sides in America’s culture wars.

As significant as this accusation has been, Scalia’s dissent leaves unanswered a disturbing question posed in the majority opinion. The language of Amendment 2, which was passed in 1992, prohibited state statutes or policies that allowed homosexuals to make any claim of “protected status or . . . discrimination.” This meant, reasoned the Justices, that the amendment authorized discrimination virtually everywhere-in housing, employment, insurance, welfare services, education, indeed, in “an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.” The Court characterized this as “peculiar” and “inexplicable.” The question that the majority found so baffling was this: What could Colorado voters have intended to accomplish when they authorized both private and public discrimination against homosexuals in an almost limitless array of circumstances?

As several law professors have observed, legal authorization for pervasive discrimination might have made homosexuals into social pariahs, isolating them into a kind of inferior caste. Granting Justice Scalia’s point that voters are entitled to express traditional moral disapproval of homosexual conduct, what-besides hatred-could have induced voters to go so far as to authorize social banishment? This issue deserves to be faced, especially by those who see Romer as one reason to discuss whether conscientious citizens should continue to obey the Court’s decisions. Confronting the hardest question about Amendment 2 will, I think, help both critics and defenders of the Court understand more fully whether and how the judiciary participates in fundamental cultural conflicts.

Scalia’s dissent did not answer the question because he denied that the amendment was aimed at anything other than preventing “special protections.” Moral disapproval of homosexual conduct, he argued, can justify denial of preferences or other special protections. This is true enough, but the plain words of the amendment also prohibited any “claim of discrimination.” Scalia’s dissent, as powerful as it is, does not help anyone who wants to identify the purpose behind those specific words.

The Court concluded that, except for animosity, no purpose for the sweeping language of the amendment was even imaginable. The hatred of Colorado’s electorate being self-evident, the majority felt no need to inquire into evidence about their actual motivations. Indeed, the Romer decision, although a freewheeling product of this era of legal realism, said almost nothing about the historical, religious, or political context of the struggle over gay rights.

This omission is so odd as to be suspicious. After all, the Court itself described Amendment 2 as an act “unprecedented in our jurisprudence.” Surely some curiosity about the conditions that produced such a novel and momentous legal event would have been natural. Moreover, despite the Court’s repeated protestations of frustrated puzzlement, no one was in a better position than the Justices to understand why Colorado voters had enacted Amendment 2. This is so because, as I shall explain, the voters were playing defense. This was-or should have been-obvious to the legal establishment from the beginning, because no one plays offense more aggressively than legal commentators and jurists. Viewing Amendment 2 from this perspective, it seems odd in the extreme that the Justices could have convinced themselves that a sympathetic account of the public’s purposes was unimaginable. To understand all this, it is helpful to look briefly at some of the social context to which the members of the majority so resolutely closed their eyes.

Colorado for Family Values (CFV, for short) was the organization responsible for drafting and promoting Amendment 2. Its arguments on behalf of the amendment are surely an important source for understanding the purposes of the law. The most influential single publication from CFV was an eight-page tabloid. Some 750,000 of these were distributed by CFV volunteers to registered voters across the state. The tabloid is described by an observer sympathetic to CFV as “the single greatest contribution to the ‘92 campaign.”

The tabloid, as might be expected of campaign material, makes liberal use of exclamation points. The main headline on the front page urges, “STOP special class status for homosexuality.” Other headlines include: “Equal Rights-Not Special Rights!”; “Vote Yes! on Amendment 2”; “Colorado civil rights leaders say ‘YES!’ on Amendment 2”; and “Are homosexuals a ‘disadvantaged minority’? You decide!”

A block inset on the front page reads:

If you do one thing to prepare yourself for this November 3rd election-please . . . arm yourself with the facts about Amendment 2. Militant homosexuals have flooded Colorado’s media with claims that they’re only after “equal protection.” Truth is, they already share that with all Americans. What they really want will shock and alarm you. Please-read this tabloid carefully, cover to cover. We’ve packed it with astonishing, fully documented reports on the actual goals of homosexual extremists.

The dominant theme developed in the tabloid is that “homosexual extremists” are powerful and have an agenda. This two-pronged claim is developed from many angles, in considerable detail, and with a sense of great urgency. Thus, the tabloid contains charges to the effect that homosexuals want to legalize pedophilia, promote homosexuality in public schools, legalize public sexual behavior, induce Congress to enact a “national ‘gay rights’ law,” abolish the traditional family, suppress “non-‘politically correct’“ speech, alter the hiring practices of churches, limit the freedoms of business owners, and, of course, establish “special class status.” The immediacy of these supposed threats is emphasized by claims about the financial and political resources of homosexuals and by numerous specific anecdotes-about local ordinances already enacted, national laws already proposed, educational literature already distributed, sensitivity training already ordered, preferences already demanded, and so on. Moreover, the tabloid insists that this complex, broadscale agenda (“the shocking truth”) has been hidden because “militant homosexuals” have been issuing misleading claims through “their friends in the press.”

The argument of the tabloid breaks down into the following elements: (1) A movement exists to further a set of goals called “gay rights.” (2) This set of goals represents a danger to the values and way of life of a sizable community. (3) This sizable community does not yet appreciate the extent or nature of the threat to its way of life because although the immediate, discrete goals of the homosexual movement, when taken together, would effect radical cultural change, this larger aim is deliberately hidden. (4) Many of the discrete changes are underway, and it is realistic to believe that the more radical cultural change could be achieved imminently. (5) The community that is at risk from these changes cannot effectively defend itself through ordinary mechanisms of self-government. (6) A state constitutional amendment is a potentially effective way to forestall both the specific goals and the larger cultural changes. In short, the tabloid is intended to rally those who believe that it is desirable to erect a legal defense against something called “the gay rights movement.”

Now, it goes without saying that a person who is moved to oppose “the agenda” of the gay rights movement could well hold “animosity” towards homosexuals. But it seems just as plain that opposition need not be based on animosity. There is the obvious but important possibility that one can “hate” an individual’s behavior without hating the individual. Moreover, even a person who is uncertain about the immorality of homosexual behavior could oppose the gay rights agenda and, thus, could be persuaded by the tabloid’s underlying argument. A voter uncertain about whether homosexuality is immoral might nevertheless worry that the gay rights movement could pose a threat to important moral virtues inherent in traditional families.

Still, while either a moralist or risk-avoider might be moved by the tabloid’s depiction of a powerful gay rights agenda, the question remains: What except hostility could explain support for the broad legal banishment inherent in the words of Amendment 2 ? Now we must be more precise. The question as stated is misleading. Amendment 2 only authorized discrimination; nothing in the law required people to engage in discrimination. Therefore it is at least possible that voters did not intend that Amendment 2 result in an actual regime of pervasive discrimination against homosexuals. Indeed, public opinion polls rather consistently indicate that Coloradans tend to disapprove of discriminatory acts against homosexuals. So a new question presents itself: If voters did not want or expect the proposed law to lead to discrimination, how could they have expected the amendment to protect the way of life that they valued?

It is here that the tabloid is most instructive. Its theme that homosexual “extremists” are powerful and have an agenda is developed, as I have said, with considerable specificity. And the specific agenda described depends in virtually all respects upon the alteration of legal rules-”militants” are said to want to legalize pedophilia and public sexual behavior and homosexual marriage, and, at the same time, to restrict contractual freedoms and religious practices and non-politically correct speech directed at homosexuality. Moreover, the tabloid argues that these discrete legal objectives have as their linchpin the establishment of “special class status.” Thus the tabloid claims that a broad threat to heterosexual society arises from a discrete series of legal “reforms” and that all of these legal changes will tend to follow from one central alteration in the law of discrimination.

To the extent that they accepted this argument, voters could certainly have seen Amendment 2 as an effective (although partial) defense even if they did not intend that it result in an actual regime of pervasive discrimination against homosexuals. Under the logic of the tabloid, the prohibition on claims of anti-gay discrimination would itself tend to protect the way of life thought to be in danger. Even if hardly anyone actually took advantage of the right to discriminate against homosexuals, voters might think that blocking this key piece of the gay rights strategy would impede other related changes in state law and therefore be likely to help prevent the feared revolution in social norms and practices. In short, given the perceived nature of the “militants’“ strategy, Amendment 2 could have been seen as an effective defense, even if no one anticipated that it would turn homosexuals into outcasts.

In fact, Amendment 2 could not work as an effective defense unless homosexuals were included as part of the political community in at least one important respect. As explained in the tabloid, the law reform strategy of gay rights activists was powerful in that it was hidden and largely beyond ordinary political control. The fear that the tabloid played on, then, was not fear of change per se but fear of surreptitious change. And that fear would have been potent for anyone who saw the gay rights agenda as ultimately threatening an entire way of life. Without adequate opportunity for notice, debate, and consent, the risks associated with such broad-scale change are magnified. Under Amendment 2, the gay rights movement at the state level could still pursue the linchpin of its strategy-but only by way of further amendment of the state constitution. Thus, the CFV proposal would allow for social revolution, but only with some assurance of high visibility and direct majoritarian control. Amendment 2 could achieve its objectives by forcing gay rights advocates to operate openly as a part of an accountable political system. What is manifest, then, in one of the bluntest and most effective pieces of propaganda on behalf of Amendment 2, is that supporters could have been acting, not from animosity, but from a desire to establish popular control over the decision whether to go down what they perceived as a road of social revolution.

It now begins to become clear why the Justices, while quick to condemn the motivations of the thousands of Coloradans who voted for Amendment 2, so studiously avoided inquiring into the social context in which these people were acting. If voters were, in effect, playing defense against a law reform strategy designed to bring on social revolution without popular consent, it must be asked how they ever got the idea that such an ambitious legal offense was a realistic possibility.

One answer is the influence of the national constitutional law establishment on our current political culture. Without this influence it might seem unrealistic, if not crazy, to believe that a profound revolution in social mores could be initiated by a single change in the law of discrimination and-even more unrealistic-that this power could be attributed to a crafty cabal of gay rights “militants.” Even admitting that one change can induce a whole row of legal dominoes to fall, the gap between written prescription and political reality just seems too great. Without broad popular support, how will the first legal change be used to induce a whole series of changes? And without strong consensus, how will these new rules bind the enforcers? How will the enforcers, even if motivated, get the resources? How will the resources be deployed to alter the behavior, let alone the beliefs, of untold numbers of people? From this angle, the content of any legal rule is likely to be epiphenomenal, apparently powerful only because rules are carried along on some vast tide of cultural transformation.

This commonsense view is not, however, fully accepted, and nowhere is it resisted more vigorously than among the constitutional law establishment. It is common for constitutional lawyers to talk breathlessly about the profound social significance of “landmark” cases. Many sophisticated law professors and judges have long believed that Brown v. Board of Education (1954) precipitated school desegregation directly and that this ended Jim Crow indirectly. Indeed, the notion that popular resistance and political pressure were mainly responsible for triumphs in these areas is often treated as something close to a sacrilege. The certitude of the legal elite on this question has been communicated over the years to the general public, so that Brown is now a cultural icon.

And racial discrimination is not a special case. In Miranda v. Arizona (1966) the Justices explained their famous mandate that police provide warnings about the right to remain silent as helping to maintain “the respect a government . . . must accord to the dignity and integrity of its citizens.” The limitations on defamation actions announced in New York Times v. Sullivan (1964) were intended as a central part of a campaign to make debate on public issues “uninhibited, robust, and wide-open.” The right to abortion first announced in Roe v. Wade (1973) was said to protect a woman’s capacity to define “her own conception of her spiritual imperatives and her place in society” and was expected to “call the contending sides of [the abortion] controversy to end their national division.” This sort of talk is not restricted to Justices trying to justify their decisions in a few extraordinary cases. Scholarly commentators have argued that Reed v. Reed (1971), a lowly case that invalidated an obscure form of sex discrimination in Idaho’s probate system, eventually brought on a revolution in sex roles. More recently, they have asserted that the single decision in the last seventy years that confines the meaning of Congress’ commerce power ( U.S. v. Lopez, 1995), will usher in a revolution (that word again) in federal/state relations. The professionals (including the Justices of the Supreme Court) who think this way for a living should not have been astonished at CFV’s claim that “special class status” for homosexuals would have wide legal and social implications.

Even Romer itself-with all of its limitations and vagueness-is thought by some members of the constitutional law establishment to hold potential as the beginning of a judicially led movement on behalf of gay rights. Cass Sunstein, for example, has argued that courts may build from Romer on a case by case basis to strike down a variety of “irrational” discriminations against gays and that this process could lead to recognition of same-sex marriage. Others have written more generally about how Romer might help produce “meaningful democratic equality for gay men and lesbians” and change “social norms and cultural meanings.”

In fact, the academic law journals bristle with various law reform strategies intended to transform heterosexual social institutions. Not all conceive of “special class status” as the linchpin. Some would address same-sex marriage directly, while others see sodomy laws as the “bedrock” of discrimination against homosexuals. But prominent among the proposals is the egalitarian strategy advocated by law professors such as William Eskridge. This idea, eerily similar to what CFV feared, is to enlist the government “to fight social oppression [against homosexuals] . . . through antidiscrimination statutes, hate crime laws, and sex education programs.” Sophisticated gay rights advocates in the academy describe themselves as conducting “ongoing guerrilla warfare against bigoted precedents, laws, and policies.” They want not only specific legal changes, like same-sex marriage, but broader cultural transformation-the “deconstruction of the categories homosexual and heterosexual.”

Academic strategizing in arcane law reviews can have astonishingly significant consequences. Workplaces across the country, for instance, have been reshaped by innovations in the law of sexual harassment that began as improbable academic theorizing. More importantly, this strategizing itself attests to the extreme precariousness of social institutions in modern America. Consider the momentous political and moral consensus represented by the Civil Rights Act of 1964. This statute by its terms and its history was clearly intended to prevent racial discrimination, including discrimination in favor of minority group members. Judges and bureaucrats nevertheless quickly converted prohibitions of discrimination into demands for preference. Thus was the public taught the same frightening lesson that emboldens academic strategizers: Just about anything can be done with words. It was this lesson, I suspect, that explains why the prohibition against any “claim of discrimination” was included in Amendment 2. To allow claims of discrimination would have been to allow zealous legal reformers the opportunity to smuggle in the right to make claims for special status.

CFV’s argument for Amendment 2 as a defense against an “attack” by “militants,” then, could have resonated with voters partly because an elite class of lawyers had helped to convince the public that even clear, stable understandings and practices can be undermined (or “socially reconstructed”) through the tactics of modern law reform. These tactics begin with a single, pivotal move and then are pursued with much the same kind of unrestrained energy and commitment as guerrilla warfare.

The fears that produced Amendment 2 included not only the fear of massive, undemocratic change, but also the fear of stealth and manipulation. Covert agendas have always, of course, been a part of politics. But the law reform tradition within the constitutional law establishment has, I think, added new force and sophistication to the tactics of secrecy and denial. While it is true that at one level legal reformers openly discuss grand objectives, the very process of adjudication tends to deny these objectives at another. All that is formally at stake in a lawsuit is the issue at hand. It was school segregation that was argued in Brown , not Jim Crow. The issue in Reed v. Reed was the narrow question of the rationality of sex discrimination in the selection of executors, not whether (as has occurred subsequently) traditional sex roles should be abolished one after another. There can be little doubt that advocates in these and many other cases intend their limited arguments as an opening wedge in a broad campaign of social transformation. Similarly, while the legal arguments accepted in Romer emphasized the extraordinary nature of Amendment 2 and intimated nothing about broader questions such as whether limiting marriage to heterosexuals is unconstitutional, advocates are busy trying to convert that decision into a basis for such revolutionary change. A kind of indirection or deniability resides in the very nature of modern law reform adjudication.

In trying to understand what brought about Amendment 2, it is important to acknowledge the complexity of collective decisions. Certainly hatred of homosexuals exists and probably played some part in the vote. Without question American history includes many extreme and hateful defensive measures. Violence, segregation, and expulsion have repeatedly been used against an array of minority groups. But these ugly techniques isolate people physically. What is different about Amendment 2 is its oddly abstract, legalistic quality.

This peculiarity, I have argued, raises the possibility that in a sense the proponents of Amendment 2 were children of the constitutional law establishment. In my opinion, their effort to protect a way of life was evidence not so much of hatred as of a touchingly innocent American commitment to legalism. It is clear that at least the leaders of CFV believed that if the rules permitted an offense, they would also permit a defense-and that a neutral arbiter would say so. Thus, even in their suspiciousness and alienation, the proponents of Amendment 2 did not fully recognize whom they were playing against: they ignored the Justices. But in this, too, they were children of legalism, accepting the judges’ traditional insistence on a pose of objectivity. Ironically, that insistence would prove essential to the Court’s conclusion that Amendment 2 was inexplicable except on the basis of animosity, for in Romer the Justices, squeezing their eyes shut, pretended that they and the rest of the legal establishment were not part of the social context that makes Amendment 2 understandable.

Perhaps it is a sign of prejudice for fearful people, buffeted by rapid change and stripped of a sense of control, to play defense against reformist aspirations. Perhaps the Court in Romer could have explained why it was wrong and unenlightened for Colorado voters to try to protect a way of life. However that may be, what the justices in Romer did not want to think about is worth thinking about. It seems quite possible that in the years ahead the pace of social change will only accelerate and that many Americans, caught up in large and uncontrollable forces, will feel increasingly frightened, isolated, and unable to control their lives. Moreover, lawyers and judges seem likely to continue to play a major role in producing this destabilization and alienation. Among other questions the legal establishment might ponder is what people in such a condition will do if their naive faith in legalistic defenses is destroyed.

Robert F. Nagel is the Ira C. Rothgerber, Jr. Professor of Constitutional Law at the University of Colorado Law School. This essay is adapted from a longer article published in the William & Mary Bill of Rights Journal.