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Court Boosts Gay Rights In 'Culture War' Ruling

On May 17, 1896, in an obscure Louisiana railcar case that came to define segregation in the South, the Supreme Court denied a minority group equal rights in the political process. Yesterday, a century later, the high court drew on the lone dissent in the famed Plessy v. Ferguson case to give homosexuals in Colorado the right to lobby as a group for protection from discrimination.

The high court's decision in Romer v. Evans, the most anticipated case of the term, overturned a Colorado referendum that banned local ordinances protecting homosexuals from housing and employment discrimination.

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The decision marks perhaps the biggest high court victory ever for gay-rights activists. It is bound to heighten the debate over gay rights at a time when the definition of family values and other "culture-war" issues are ascendant in the presidential campaign.

Romer was regarded as a high-octane case, not only since it pits the will of the majority in a democracy against the rights of the individual - but also due to high feelings in the state of Colorado, both in support and opposition to homosexuals.

Writing for the high court in a 6-to-3 decision, Justice Anthony Kennedy opened his opinion with the lone dissent of Justice Harlan in Plessy - that the Constitution "neither knows nor tolerates classes among citizens."

Justice Kennedy went on to reaffirm "the rights of persons" under the Constitution's 14th Amendment, saying that those rights rendered the Colorado amendment invalid. Scholars say it is significant none of the other justices that joined with Kennedy wrote separate opinions - indicating an effort by the majority to show a unified front on a contentious issue.

"You hear a lot about a fractured court these days," says Mark Tushnet, a dean at the Georgetown University Law School. "The justices worked to avoid that in this decision. That sends a message."

Still, that Kennedy and Justice Sandra Day O'Connor voted in the majority is itself indicative. The pair represent a crucial "swing vote" center of the current court, whose voting patterns reflect neither consistently conservative nor liberal views.

In a colorful and sometimes blistering dissent, Justice Antonin Scalia based his argument on the culture war aspect of the case, saying that Coloradans were within their rights to try and "preserve traditional sexual mores" in their state.

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"Today's opinion," Justice Scalia wrote, "has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals...."

The Romer case arose after gay advocates in the the Colorado towns of Aspen and Boulder helped orchestrate local laws prohibiting discrimination against homosexuals. In 1992, conservative groups in the state initiated a popular referendum against these ordinances that carried a state majority.

The resulting "Amendment 2" to the Colorado Constitution would have wiped out all possibility for homosexuals to have political recourse, to participate on behalf of their interests in city councils or the state legislature, and so on. Similar amendments were raised, then defeated, in Oregon and Idaho.

Colorado's Amendment 2 was never enacted. In 1993, the Colorado Supreme Court overturned it on the grounds that Amendment 2 denied a group its "fundamental right" to the political process. Colorado Gov. Roy Romer (D) then filed with the US Supreme Court to reinstate the amendment.

A key question anticipated by scholars in the ruling was whether the court would give homosexuals a new status of protected rights, similar to that of blacks or women. The court would have had to evaluate homosexuals as a group and offer strong reasons for special status. The last high court ruling on the status of homosexuals, Bowers v. Hardwick in 1986, had a split (5 to 4) court denying that gays have any fundamental rights as a group.

But rather than finding a special status, Justice Kennedy's opinion relied on something called a "rationale" test. That simply means that the court found homosexuals were denied their rights due to bias.

"We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else," Kennedy wrote. "This Colorado cannot do."

The decision is seen as a setback for states' rights advocates. In recent years, voter referendums, particularly in Western states, have become popular. California has a referendum pending that would curb affirmative action. How the court's ruling would affect these efforts is unclear, but it does not give additional constitutional support for state and local control.

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