[Congressional Record Volume 142, Number 96 (Wednesday, June 26, 1996)]
[Extensions of Remarks]
[Page E1174]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      CONSERVATIVE ADVOCATE DEFENDS SUPREME COURT COLORADO OPINION

                                 ______
                                 

                           HON. BARNEY FRANK

                            of massachusetts

                    in the house of representatives

                        Wednesday, June 26, 1996

  Mr. FRANK of Massachusetts. Mr. Speaker, when the U.S. Supreme Court 
upheld the decision of the Colorado Supreme Court invalidating a 
Colorado law which put gay men and lesbians at a particular 
disadvantage with regard to antidiscrimination legislation, a number of 
people on the right responded with stirring denunciations of the 
Supreme Court majority. And Justice Scalia wrote an angry and poorly 
reasoned dissent in which he denounced the majority and misrepresented 
their decision. I was therefore particularly pleased to read a 
thoughtful, reasoned defense of the Supreme Court majority opinion 
which upheld the Colorado Supreme Court's rejection of this law as an 
unconstitutional effort to impose special burdens on lesbians and gay 
men, written by Clint Bolick. Mr. Bolick is a very prominent advocate 
of the conservative position on legal issues, and serves as the 
Litigation Director at the Institute for Justice in Washington. As the 
printed article notes, the Institute itself has no position on the 
Supreme Court decision in this case.
  Mr. Bolick's article is an example of intellectual honesty and 
integrity because as he notes, he does not favor laws that protect gay 
men and lesbians against discrimination, but unlike many others--on 
both sides of the ideological spectrum--he does not allow his public 
policy preference to cloud his analysis of the underlying legal and 
constitutional principles that are at stake. Because this is an issue 
of great importance to the country, and because the Supreme Court 
majority opinion has been so grievously misrepresented by Justice 
Scalia and by many Members of this body, I ask that Clint Bolick's very 
sensible discussion be printed here.

           [From the Los Angeles Daily Journal, June 4, 1996]

    ``Romer'' Court Struck a Blow for Individuals Against Government

                           (By Clint Bolick)

       Reaction to the U.S. Supreme Court's opinion striking down 
     Colorado's Amendment 2 predictably was morally charged: 
     Generally those who disapprove of gay lifestyles reviled it; 
     those who don't liked it. The superficial reaction overlooks 
     the decision's deeper implications, which go far beyond gay 
     rights. For the court may have recognized in the 
     Constitution's equal protection guarantee significant new 
     restraints on majoritarian tyranny.
       I anticipated the court's ruling in Romer v. Evans with 
     decidedly ambivalent feelings. I hold the classic libertarian 
     position toward gay rights: An individual's sexual 
     orientation is a private matter, and properly outside the 
     scope of governmental concern. But I also cherish freedom of 
     association and believe people should be free to indulge 
     their moral judgments about other people's lifestyles and 
     proclivities, even though I do not share those judgments.
       The Amendment 2 case presented a libertarian conundrum. On 
     one hand, Colorado municipalities were adopting gay rights 
     ordinances that interfered with freedom of association, 
     adding sexual orientation to other ``protected categories'' 
     such as race and gender on which private discrimination is 
     prohibited. On the other hand, Amendment 2 singled out gays 
     for hostile treatment under law, rendering them alone 
     incapable of attaining protected-category status through 
     democratic processes.
       So in my view the case was a close one. But in the end the 
     Supreme Court's 6-3 majority got it exactly right: Amendment 
     2 was impermissible class legislation. ``Central both to the 
     idea of the rule of law and to our own Constitution's 
     guarantee of equal protection,'' declared Justice Anthony 
     Kennedy for the majority, ``is the principle that government 
     and each of its parts remain open on impartial terms to all 
     who seek its assistance.''
       Noteworthy is what the court did not do. It did not, 
     contrary to some analyses, recognize gays as a ``protected 
     class'' or apply heightened judicial scrutiny. It was the 
     state that defined the class and subjected it to adverse 
     treatment under law.
       What the court did was to breathe new life into the equal 
     protection guarantee. Since the New Deal, the court generally 
     has invalidated legislative line-drawing only when it 
     involves a ``suspect classification'' (such as race) or a 
     ``fundamental'' right (such as voting or free speech). 
     Most other governmental classifications need have only a 
     ``rational basis'' to survive judicial scrutiny.
       As first-year law students learn, ``rational-basis'' review 
     almost always translates into carte blanche deference to 
     government regulators. That means a green light for nakedly 
     protectionistic laws, particularly in the economic realm.
       In recent years, my colleagues and I have managed 
     successfully under the rational-basis standard to challenge 
     the District of Columbia's ban on street-corner shoeshine 
     stands and Houston's anti-jitney law. But challenges to 
     Denver's taxicab monopoly and to Washington, D.C.'s 
     cosmetology licensing scheme on behalf of African hair-
     braiders were dismissed under rational basis, even though the 
     regulations were aimed at excluding newcomers. For those 
     entrepreneurs, the judicial abdication rendered equality 
     under law a hollow promise.
       Such class legislation was of paramount concern to the 
     Constitution's framers, who worried about the power of 
     ``factions'' to manipulate the coercive power of government 
     for their own ends.
       The Colorado amendment is a textbook example of class 
     legislation. ``Homosexuals, by state decree, are put into a 
     solitary class with respect to transactions and relations in 
     both the private and governmental spheres,'' Justice Kennedy 
     remarked. Amendment 2 ``imposes a special disability on those 
     persons alone.''
       In such instances, reflexive deference to governmental 
     discretion would nullify constitutional freedoms. So the 
     court required the government to show that its classification 
     in fact was rationally related to a legitimate state 
     objective. As Justice Kennedy declared, ``The search for the 
     link between classification and objective gives substance to 
     the Equal Protection Clause.''
       In this case, the state justified its classification on 
     grounds of freedom of association and conserving resources to 
     fight discrimination against other groups. But as the court 
     concluded, ``The breadth of the Amendment is so far removed 
     from these particular justifications that we find it 
     impossible to credit them.''
       Contrary to Justice Antonin Scalia's dissent, the ruling 
     does not mean the community cannot enforce moral standards. 
     It merely must make its rules applicable to everyone. The 
     state can prohibit various types of conduct, it can refrain 
     from adding gays to the list of specially protected classes--
     indeed, it can cast its lot with freedom of association and 
     eliminate all protected classes. What it cannot do is to 
     impose a distinctive legal disability upon a particular 
     class, unless it can demonstrate legitimate objectives 
     advanced through rationally related methods.
       Nor should equal protection depend on whose ox is gored. 
     The same government that can impose legal disabilities upon 
     gays can inflict them upon veterans, or the disabled, or 
     home-schoolers, or entry-level entrepreneurs, or any other 
     class targeted by those who control the levers of government.
       The court's decision in Romer v. Evans is the latest in an 
     important but unremarked trend in which the Supreme Court has 
     revitalized constitutional limits on government power in a 
     variety of contexts. Exhuming the Fifth Amendment's 
     ``takings'' clause, it has protected private property rights 
     against overzealous government regulation. Last term, for the 
     first time in 50 years, it invalidated a federal statute as 
     exceeding congressional power under the interstate commerce 
     clause. It has extended First Amendment protection to 
     religious and commercial speech. And under the equal 
     protection clause, it has sharply limited government's power 
     to classify and discriminate among people on the basis of 
     race.
       Alexis de Tocqueville observed that ``the power vested in 
     the American courts of pronouncing a statute to be 
     unconstitutional forms one of the most powerful barriers that 
     have ever been devised against the tyranny of political 
     assemblies.'' Largely unheralded, the current Supreme Court 
     has become a freedom court. Though comprising shifting 
     majorities, the court seems quietly to be constructing a 
     constitutional presumption in favor of liberty--precisely 
     what the framers intended.

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