Homosexuals:A created a heated debate over the
Homosexuals:A Suspect Class?The struggle for minority protection by lesbians and gay men has movedto the center of American life at the outset of the 1990’s.It is almostcertain that lesbian and gay issues will be a more eminent aspect of the publicconsciousness and American political scene in the coming decade than in anyother time in American history.Policy changes early in Bill Clinton’sadministration created a heated debate over the military presence of gays andlesbians, several states have passed amendments prohibiting laws that protecthomosexuals from discrimination, and nearly every religious organization in thenation is facing tough questions ranging from the ordination of homosexuals tohomosexual marriages.Furthermore, the homosexual community is more prominentthan ever:Lesbians and gay men are fighting for civil rights in the courtroomand in Congress, there are gay characters on prime-time television shows, well-known public figures openly discussing their homosexuality, and there isvirtually no one who can claim that they have never had contact with ahomosexual.In the middle of all this publicity, there lingers a pendingSupreme Court case in which the fate of the homosexual lies:Romer v.
Evans, acase that dominated Colorado that has come to “symbolize the controversy overgay legal rights” throughout the nation.This paper will trace the elementsbehind that case, and attempt to focus on the steps the Supreme Court willfollow to determine whether homosexuality must be legally considered a “suspectclass” for the purposes of “quota preferences, protected status or claim ofdiscrimination” as outlined by Colorado’s now-famous Amendment 2.Amendment 2 does away with any attempt to protect homosexuals as a groupthat needs special rights because of discrimination.It was enacted after astatewide referendum, in which 53% voted for the measure.Richard Evans suedthe state and Governor Romer (who, ironically, opposed the amendment) under theFourteenth Amendment’s Equal Protection Clause, saying that Amendment 2infringes upon the homosexual’s “fundamental right to participate in thedemocratic process.”Romer v.
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Evans has had amicus curiae or “friend of thecourt” briefs filed for both sides–briefs that have pitted state against stateand church against church.Colorado officials are quick to say that their stateis not acting out of hate, but merely deciding in a democratic fashion whetherhomosexuals need to be singled out for protection against discrimination.TheColorado Supreme Court, however, struck down the amendment, saying:Amendment 2 bars gay men, lesbians and bisexuals from having aneffective voice in governmental affairs, insofar as those persons deem itbeneficial to seek legislation that would protect them from discrimination basedon their sexual orientation. The United States Supreme Court must now determinewhether or not to uphold the Colorado Supreme Court’s decision, despite theresults of the referendum that was basically a public affirmation of orthodoxChristian beliefs.For hundreds of years homosexuality has been uniformly condemned bytraditional Christian societies as immoral.On that ground, it was nevercontested that sodomy should remain illegal and unprotected by any legislation–homosexuals were considered unnatural sexual deviants, and were treated as such.In recent years, however, startling new research has indicated thathomosexuality is possibly inherited and determined by chromosomes.
A 1992 studydirected by neuroscientist Simon LeVay showed that a tiny area believed tocontrol sexual activity known as the hypothalamus was less than half the size ingay men as in heterosexual men.This study raises an interesting question:Ifhomosexuality is hereditary, is there any basis for societal discriminationagainst something innate?The reactions of the homosexual community have been mixed.As many seeit, looking for a “cause” of homosexuality suggests that it is an abnormality,and implies that it is deviant from a “normal” heterosexuality.
On the otherhand, history has shown that society’s perception of gay activities can bethreatening, if not deadly.Over the centuries they have either been merely”intolerated” or, more often, detested.After a 13th century sermon from SaintThomas Aquinas, society began to view gays as “not only unnatural butdangerous.”A genetic component in sexual orientation would tell homosexualsand the world that homosexuality is not a fault, and not the fault of anyoneother than nature.Society’s traditional stance on homosexuality has often subjectedhomosexuals to a horrifying list of “cures” at the hands of psychiatrists andpsychologists–usually aimed at heterosexual reorientation.Treatments likethese have almost invariably involved a “negative value judgment concerning theinherent character” of homosexuality.Among these “cures” have been suchsurgical measures as castration, hysterectomy, and vasectomy; others haveincluded electric and chemical shock treatment, aversion therapy, and drugs.
Asrecent as 1967, hypnosis was still being used to treat “deviant behavior.”Now,in the shadow of the aforementioned studies, psychiatrists and psychologistsalike are taught that they should help homosexuals to feel more comfortable withthemselves and their sexual orientation.It is hoped that such treatment willnot only help homosexuals feel more at ease with their sexuality, but also givesociety a different, more “educated” view of the gay community and lifestyle.The traditional moral view of homosexuality is legally irrelevant,however.The thing that truly hampers the homosexual’s case in Romer v. Evansis a previous Supreme Court decision, Bowers v. Hardwick.
In this case, MichaelHardwick, the plaintiff, was “charged with violating the Georgia statutecriminalizing sodomy by committing that act with another male in the bedroom” ofhis home.His suit was based on his belief that the law violated hisfundamental right to homosexual activity because it is “a private and intimateassociation beyond the reach of state regulation” by reason of the NinthAmendment, which states “the enumeration in the Constitution, of certain rights,shall not be construed to deny of disparage others retained by the people”, andby the Due Process Clause of the Fourteenth Amendment.The Supreme Court ruledagainst Hardwick in a 5-4 decision, saying that the Constitution did not “extenda fundamental right to homosexuals to engage in acts of consensual sodomy.”Ina concurring opinion, Chief Justice Warren Burger, quoting an old Englishstatute, describes homosexuality as: “The infamous crime against nature” asan offense of “deeper malignity” than rape, a heinous act “the very mention ofwhich is a disgrace to human nature” and “a crime not fit to be named” . .
. Tohold that the act of homosexual sodomy is somehow protected as a fundamentalright would be to cast aside millennia of moral teaching. Since the Court foundthat private acts of sodomy are not constitutionally protected, Georgia waspermitted to bar homosexuality on merely “rational” grounds–a far cry from the”compelling state interest” it would have had to meet if the sodomy had beenprotected.The rational reason, the Supreme Court said, was that:The law .
. . was constantly based on notions of morality . . .if all laws representing essentially moral choices are to beinvalidated under the Due Process Clause, the courts will bevery busy indeed.
The new evidence of inherited genes for homosexuality, however, willforce the Supreme Court to reexamine the way it looked at Bowers v. Hardwick. In order to determine the legality ofdiscriminating against certainindividuals, the Court must examine factors that will possibly identify thatgroup as a “suspect class.”If the Court recognizes those individuals as asuspect class, it makes any discrimination (such as that contained in Colorado’sAmendment 2 statute) very difficult on the part of the state.The first factor the Supreme Court generally considers is whether thegroup at issue has suffered a history of purposeful discrimination.In the caseof homosexuality, there is no .
….question that homosexuals have historically beenthe objects of vicious and sustained hostility, as outlined earlier in thispaper.Homosexuals have been the frequent victims of “gay-bashing,” and havebeen excluded from jobs, schools, housing, churches, and even families;withthis evidence it is plain that homosexuals in our society have faced as muchhatred as other suspect classes such as blacks or people of a particularnational origin.
The second factor the Supreme Court considers when analyzing suspectclasses is “whether the discrimination embodies a gross unfairness that issufficiently inconsistent with the ideals of equal protection to term itinvidious.”The interpretation of this factor can be further broken down intothree separate terms.The Court considers first whether the group is defined bya trait that frequently bears no relation to ability to perform or contribute tosociety.
It is evident, by the powerful and responsible positions of many gaymen and women in America, that sexual orientation plainly has no relation to aperson’s ability to perform in society–thus, homosexuals meet this standard. The second thing the Court considers is whether negative societal concepts stemfrom inaccurate stereotypes.The homosexual is rarely, as widely believed tothe contrary, a threat to all people of their sex or immature children; in fact,the majority of the homosexual population remains quietly in their homes–thus,homosexuals meet the second term as well.It is the third term of this second factor that will be called intoquestion by the Court when deciding Romer v. Evans.The Court must determinewhether homosexuality is immutable, or, at a minimum, requiring a major physicalchange or a traumatic change of identity.If only five out of the nine SupremeCourt justices determine that the aforementioned studies conclusively show thathomosexuality is an inherent trait, the Colorado Supreme Court decision thatAmendment 2 is unconstitutional will be upheld.
The third and final factor the Supreme Court considers in suspect classanalysis is whether the discriminated group lacks the political power necessaryto redress the government.Even when homosexuals are able to pursue theirrights openly in the political arena, society’s view of them probably makestheir efforts ineffective.Elected officials, sensitive to their constituents’opinions may be swayed to vote against legislation that even has the appearanceof condoning homosexuality.Undoubtedly, homosexuals meet this third and finalfactor.
It is possible, but not certain, that homosexuals are a suspect class,and as such Amendment 2 will be subject to much greater judicial scrutiny.Ifthis proves to be the case, it is highly probable that Romer v. Evans will beupheld and it is also possible that there will be legislation in Congress toinclude homosexuals on the growing list of those entitled to be consideredminorities, receive quota preferences, andbe protected from discrimination bylaw.Even if homosexuals are not considered a suspect class by the SupremeCourt, Amendment 2 may be struck down under the Fourteenth Amendment’s FreeExercise Clause, which declares that a state may not “deny to any person withinits jurisdiction the equal protection of the law.”Jean E.
Dubofsky, the lawyerfor Richard Evans in the case, said “the Court need not rule homosexuals aspecially protected class to find that Amendment 2 infringes upon their rights.”Specifically, Dubofskybelieves the amendment takes away the ability ofhomosexuals to urge their city councils to accord them the specific protectionthat other groups have the right to seek–denying them equal protection in thedemocratic process.If the Court agrees with that argument, Amendment 2 will beconsidered unconstitutional, whether homosexuals are a suspect class or not.My personal opinion, however, is rooted in my belief in a natural law. I am a Christian, and have been taught all my life that homosexuality is a sin,and I still believe that.That does not change the fact that history isundeniably cruel to the homosexual–it is possible that “no single group ofhuman beings has been subjected to greater injustice, persecution, and sufferingthan they.
“I find it personally appalling that homosexuality is treated byChristians as a sin that is “worse” than most other sins.Our society has beenconditioned into an emotional revulsion so bitter that we even avow that wewould rather see our children “dope addicts or murderers” than homosexuals. This is not right.Christianity is based on God’s unconditional love for thesinner, despite his hatred of the sin.Our efforts to reach homosexuals shouldnot be out of uneducated fear or inaccurate stereotypes, but founded in the samelove for every man and woman that God has.Acceptance, not sermons, changes thehomosexual.
The New Catholic Encyclopedia expresses my sentiments exactly:It should be stressed that a homosexual is just as pleasing to God as aheterosexual, as long as he makes a sincere effort to control hishomosexuality with the help of grace.Although the individual may feelcertain that his inversion is so deep that he cannot redirect his tendencies, hemust accept them and seek to fulfill some purpose in the world.Although this sort of thinking bears little consequence on Romer v.Evans, I believe there is one other aspect to the case that must be dealt with. The studies of Simon LeVay are certainly inconclusive, regardless of how theyare looked at.
Although they showed without question that the hypothalamus issmaller in gay men, there are still many other things to be considered, chiefly:Could sexual orientation affect brain structure, instead of vice versa?KennethKlivington, an assistant to the president of the Salk Institute, points to abody of evidence revealing that “the brain’s neural networks reconfigurethemselves in response to certain experiences.”For example, one study foundthat the area of the brain controlling the reading finger grew larger in peoplewho read Braille after becoming blind.It is possible then, that thehypothalamus is affected in the reverse way–a lack of heterosexual activity mayshrink that area of the brain.Even LeVay admits that “that’s a distinctshortcoming” of his study, because he knew “regrettably little” about hissubjects’ sexual histories.
It seems more likely, then, that homosexuality would be a product ofboth genetics and learned behavior.As evidence of this, I submit my mother’sside of the family, which contains many alcoholics.In my mind, the evidenceoverwhelmingly supports that a predisposition to alcoholism is hereditary.Yet,the Bible says “do not get drunk on wine, which leads to debauchery.”I cannotexplain why there is an inherited trait for something condemned as a sin, norwill I attempt to.My point is that if there are genes that sway people towardhomosexuality, they are to be fought just like the predisposition to alcoholismI have inherited must be.
Things that “feel” more natural are not alwaysinevitable, and simply because I have the genes to make me more likely to be analcoholic does not mean I will be an alcoholic.If the Court interprets the genetic components of homosexuality the wayI do, Romer v. Evans will be overturned because Bowers v. Hardwick will stand. In other words, if homosexuals are not considered a suspect class, then theiractivity can be made illegal in Colorado by legislation:Therefore, it would be ridiculous to have special rights that protect criminals, and Amendment 2will be constitutional.
I am not a bigot, or a homophobe, or a right-wing religious zealot. Homosexuals should have just as much opportunity to participate in the politicalprocess as anyone else–that is a fundamental facet of our nation’s democracy. Nevertheless, to place them in a class with other minorities like blacks, thedisabled, or illegitimate children would be to sanction their behavior– abehavior that appears to be as much learned as inherited.Until that debate issettled, I believe it is not necessary to protect homosexuals by quotapreferences or protected status, and in my opinion, Amendment 2 is both legallyand morally appropriate.