Gay and Lesbian Rights - Backlash

As the same-sex marriage issue demonstrates, the efforts of gay men and lesbians to achieve social and legal equality have generated a backlash from those who oppose their agenda. Domestic partnership acts and gay rights ordinances have been rejected by voters in a number of cities and municipalities, including Irvine and Concord, California. At the state level, the voters of Oregon in 1988 approved a referendum that repealed an executive order by former governor Neil Goldschmidt that had prohibited state agencies from discrimination based on sexual orientation. Measure 8, as the referendum was labeled, never went into effect, as the Oregon Court of Appeals ruled it unconstitutional (Merrick v. Board of Higher Education, 116 Or. App. 258, 841 P.2d 646 [1992]).

Undaunted by this court decision, the anti-gay Oregon Citizens Alliance placed a referendum on the 1992 Oregon ballot called Measure 9. Measure 9 was a strongly worded initiative that would have prohibited civil rights protection based on sexual orientation and required state and local governments and school districts to discourage homosexuality. Proponents of the initiative believed that homosexuality was abnormal and perverse. The referendum was rejected on November 3, 1992, by a margin of 57 to 42 percent.

In contrast, voters in Colorado signaled a distinct displeasure with gay and lesbian rights. In November 1992, Colorado took the unprecedented step of amending the state constitution to prohibit state and local governments from enacting any law, regulation, or policy that would, in effect, protect the civil rights of gays, lesbians, and bisexuals. The amendment, known as Amendment 2, did not go into effect, as a lawsuit was filed challenging the constitutionality of the new provision.

This lawsuit—ROMER V. EVANS, 517 U.S.620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996)—reached the U.S. Supreme Court. In a landmark and controversial decision, the Supreme Court struck down the amendment as unconstitutional. Justice ANTHONY M. KENNEDY, writing for the majority, declared that the Colorado provision violated the Equal Protection Clause of the FOURTEENTH AMENDMENT. The Court found that the amendment did more than repeal state and municipal gay rights laws. The amendment prohibited "all legislative, executive or judicial action at any level of state or local government designed to protect … gays and lesbians." Under this provision, the only way gay men and lesbians could secure their civil rights was through amendment of the state constitution. This approach was too limited. Kennedy concluded that "[i]t is not within our constitutional tradition to enact laws of this sort." The Colorado amendment classified gay men and lesbians "not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do."

The Romer decision was a major advance for gay and lesbian rights, as in it, the Supreme Court made clear that states cannot use a broad brush to limit civil rights. The political process cannot be changed to prevent gay men and lesbians from using the political and legal tools afforded all other citizens. The decision did suggest, however, that it is not unconstitutional to repeal specific legislation that favors gay rights.