Front matter
Law,
AND VIOLENCE
STRANGERS TO THE PEV
Chapter 6. Civil Rights and “Special Rights” 133 Chapter 7. Morality Plays 159
Chapter 8. The Colorado Verdicts 177 Chapter 9. The U.S. Supreme Court 195 Chapter 10. The Law and Social Change 225
Appendix: Text of U.S. Supreme Court Decision in Romer v. Evans 241
Index 267
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Preface
Within the first days of the trial of Colorado’s antigay initiative, known as Amendment 2, a historic moment in gay civil rights history began to unfold. As a journalist covering the trial for gay readers and a lawyer on the legal team challenging the measure, we were among a relatively small group of people in court day after day to usher this moment's entry into our history books.
Although this was not the first trial to address an antigay attack, it was the most comprehensive in its attempt to sift through all that was known about gay people—from ancient history through the latest scientific research—to determine where and how gay people fit into the body politic. l
During the nine days of testimony, experts from across the country took the witness stand to offer their thoughts on the role of gay people in society and on whether and how majority rule may be limited in a democratic society.
As each day of the trial passed, it became increasingly clear that, in addition to the legal question—whether Colorado voters could deny gay people access to civil rights protections—the case was also trying to answer another question: Who are gay people? Witnesses, including a historian, a geneticist, psychiatrists, political scientists, and media experts, testified extensively about these issues. But each advanced a different answer, depending on his or her particular vantage point. To record these views, put this trial into a historical context, and explore the questions the trial raised, we agreed to write this book.
As coauthors, we, too, have viewed this case and trial from different vantage points: Suzanne Goldberg, as a lawyer for Lambda Legal Defense and Education Fund, the oldest and largest national lesbian and gay legal group, was a member of the legal team challenging Amendment 2; Lisa Keen, as executive editor for the Washington Blade, the oldest and largest gay newspaper in the United States, covered the
Keen, Lisa Melinda, and Suzanne Beth Goldberg. Strangers to the Law: Gay People On Trial. E-book, Ann Arbor, MI: University of Michigan Press, 1998, https://doi.org/10.3998/mpub.14593. Downloaded on behalf of Unknown Institution x PREFACE trial and events surrounding the case as a journalist. This book is inevitably shaped by these two perspectives, but we have shared a commitment to record the events surrounding the trial in as full, fair, and objective a manner as possible. In doing so, we do not report every personality conflict nor every strength or weakness of the individuals involved in the case. We keep our focus on the significant conflicts about litigation strategy within the plaintiffs’ legal team. We have undertaken this project independently of our affiliations with Lambda and the Blade. And, while we have made explicit note of Suzanne’s involvement as a member of the plaintiffs’ legal team, we have presented the text that follows in the third person.
Many of the key players involved in the trial and the events surrounding it have publicly identified their sexual orientation, and many have not. When the subjects of our story have made that information public—whether heterosexual, lesbian, gay, or bisexual—we indicate that. But, out of our shared belief that each person should have the right to decide for himself or herself whether to make his or her sexual orientation public, we have not attempted to report this information independently.
We also acknowledge that different people often use different terms to identify their sexual orientation, and we use those terms, too, as much as possible. But, from time to time, to keep the text readable, we use the term “gay people” to represent lesbians and gay men, as well as people who have, as Amendment 2 put it, “homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships. . . .” In a similar manner, we use the term “religious right” to represent people, organizations, and movements working to advance causes, such as Amendment 2, that reflect a religiously oriented conservative political agenda. To keep the text clear, we also correct punctuation, typographical errors, and, occasionally, grammatical errors in quotations taken from the trial transcript.
We are deeply grateful for the generosity of several people who contributed to the refinement of the final manuscript by sharing with us their expertise, support, and editorial advice: David L. Chambers, Matthew A. Coles, Kathryn E. Diaz, Paula L. Ettelbrick, Chai R. Feldblum, Richard L. Goldberg, Don Michaels, Martha Minow, and Ellen Reisman; and we thank our editor at the University of Michigan Press, Charles T. Myers, for his expertise, encouragement, and enthusiasm for this work. In addition, as one of the lawyers for the plaintiffs, Suzanne
Keen, Lisa Melinda, and Suzanne Beth Goldberg. Strangers to the Law: Gay People On Trial. E-book, Ann Arbor, MI: University of Michigan Press, 1998, https://doi.org/10.3998/mpub.14593. Downloaded on behalf of Unknown Institution
PREFACE xi thanks the plaintiffs, the legal team, and the many individuals who laid the groundwork for this victory and who continue to build upon it. Lisa thanks her colleagues at the Washington Blade, Don Michaels, Colleen Marzec, and Kristina Campbell, for their work to ensure that this story was reported as it happened.
Finally, we thank the colleagues, friends, and family members whose love, support, and unswerving confidence helped us in the effort to document this important moment in our history.
Lisa Keen Washington, D.C.
Suzanne B. Goldberg New York, N.Y.
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Chapter 1
Over the centuries, people have been jailed, institutionalized, exiled, forced into slavery, or systematically executed for being “different.” Sometimes, these severe reactions have stemmed from the majority’s ignorance and fear; but, just as often, they were fueled by the desire to profit from prejudice—either economically or socially. The dangers of being targeted by this prejudice have often been so great as to drive those in a minority to take drastic measures to hide their difference—by changing their names, denying their loved ones, and even using toxic chemicals in an attempt to change the color of their skin.
Depending on the country and century, people who have been different by virtue of being homosexual have been whipped, imprisoned, hanged, banished, lobotomized, ostracized, burned at the stake, or ignored to the point of virtual extinction. For centuries they were seen as sinning against nature and, therefore, “against God,” and during times and in places of “increased religious fervor,”* they were put to death. As conflict arose over what constituted the “laws of God,” the laws of government took greater precedence. Homosexuality became condemned as both socially deviant and against nature and was penalized in the general belief that it should be discouraged, if not eradicated.
In recent years, social scientists have found strong evidence that homosexuality is a phenomenon of nature, albeit much less common than heterosexuality. With increased enlightenment, the price for being different in this way has, for the most part, lessened.
Even today, however, hostility toward people who are homosex-
1. Judith C. Brown, “Lesbian Sexuality in Medieval and Early Modern Europe,” Hidden from History: Reclaiming the Gay and Lesbian Past, edited by Martin Duberman, Martha Vicinus, and George Chauncey Jr. (Ontario: New American Library, 1989), 498. In a footnote, Brown refers readers to Ritual, Myth and Magic in Early Modern Europe by William Monter (Athens: Ohio University Press, 1984), 116-17.
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“We firmly believe that we’re involved now in one of the most incredible cultural wars that has ever occurred in Western civilization,” said an activist on one side. And, he warned, “it’s coming to every city, every little town, every city council, every school. This is something that’s going to be fought out, really, all across the nation, and people are just going to have to decide what they think about it.”?
It was going to be fought out in a courtroom, too, through a lawsuit called Evans v. Romer. The catalyst for the courtroom battle was an attempt by religious right activists in Colorado to limit—through a bal-
2. “The New Holy War,” aired November 19, 1993, on PBS’s Bill Moyer’s Journal; Transcript No. 1003, 1.
3. The full name of the case at its inception was Richard G. Evans, Angela Romero, Linda Fowler, Paul Brown, Martina Navratilova, Bret Tanberg, Priscilla Inkpen, the City and County of Denver, the City of Boulder, the City of Aspen, and the City Council of Aspen, plaintiffs, v. Roy Romer as Governor of the State of Colorado, defendants. Later, the Boulder Valley School District RE-2 also joined as a plaintiff. It was commonly referred to as Evans v. Romer until it reached the U.S. Supreme Court, at which point it was referred to as Romer v. Evans.
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Cultural War to Court
The question was thrust into court in Denver after the people of Colorado, on November 3, 1992, voted 53 percent to 46 percent to approve a measure called Amendment 2, which had been placed on the statewide ballot through the efforts of a right-wing religiously oriented political group called Colorado for Family Values (CFV). The initiative sought to amend the state constitution to: (1) repeal any existing law or policy that protected a person with a “homosexual, lesbian, or bisexual orientation” from discrimination in Colorado and any of its cities, towns, counties, and school boards and (2) prohibit future adoption or enforcement of “any [such] law or policy.” The ballot question read:
NO PROTECTED STATUS BASED ON HOMOSEXUAL, LESBIAN OR BISEXUAL ORIENTATION. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.
This Section of the Constitution shall be in all respects self-executing.4
4. The text of Amendment 2 as it appeared on the Colorado statewide ballot.
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The majority of Colorado voters put their support behind CFV’s position that laws and policies prohibiting discrimination based on sexual orientation provide “special rights” to gay men, lesbians, and bisexual people that gay people neither “deserve” nor need. The minority of voters—including gay people and those who supported civil rights laws generally—argued that Amendment 2 was both an attempt to render gay people vulnerable to discrimination and an initial step toward undermining antidiscrimination laws that protect other minorities.
The majority spoke through its vote at the ballot box. Many voters believed that, since the U.S. Constitution promises people the right to self-govern, the amendment was a reasonable exercise of their constitutional rights. And since the voters had approved Amendment 2 to become part of their state’s constitution, the state government carried the responsibility of defending the initiative against any legal challenge.
The minority responded through the legal system. It expected that, since the Constitution promises that all citizens have “equal protection” under the law, the amendment would be declared unconstitutional because it sought to treat gay people unequally. The minority, however, could not count on the state to defend its rights. Instead, opponents of Amendment 2 organized a team of attorneys to mount a lawsuit against the measure. They found seven Colorado citizens, three cities, and one city council, then later a school district, within the state to serve as plaintiffs. And on November 12, 1992, they filed their lawsuit in the Colorado District Court for Denver.
It was thus left to the judiciary to referee this clash between the Constitution’s principle of majority rule and its protections for the rights of minorities. Throughout the nation’s history, the courts had decided that both types of constitutional provisions had some limits. With respect to minority rights, states could treat some citizens differently in some circumstances if the government could demonstrate it had legitimate or compelling reasons to do so. And regarding majority rule, the U.S. Supreme Court had also ruled that “the people may retain for themselves the power over certain subjects,” but in the same decision—regarding a ballot initiative in the 1960s that discriminated against African-Americans—it also noted that the people themselves had put limits on majority power through the Constitution.’ Thus the
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The battle over Amendment 2 brought to the courts yet another national conflict over the tension between the constitutional promises of democracy and equality for all.
Decades of Division
Just as Amendment 2 was not the first ballot battle to drag those warring principles into the courtroom, it was not the first ballot measure to take hostile aim at gay people—not the first in Colorado and not the first in the United States. Before the vote on Amendment 2 in November 1992, 33 antigay initiatives and referenda had already been on local ballots in jurisdictions around the country—at least one about annually since the first in 1974. Early on, these initiatives carried a high emotional volume and profile. They were the backlash against the early surges of gay activism that followed the Stonewall Rebellion in June 1969. Though gay organizations had been active for years, the rebellion, at which gay people literally fought back against police harassment in a New York City bar called the Stonewall Inn, is commonly regarded as the starting point of modern gay political movement. As word of Stonewall spread quickly around the country, it inspired the formation of new gay political groups to seek laws to protect gay people from such harassment and discrimination. Within just a few years, these new groups succeeded in having sexual orientation antidiscrimination ordinances enacted in a number of cities and counties throughout the country, including Boulder, Colorado; Columbus, Ohio; Dade County, Florida; Detroit; Seattle; San Francisco; and Washington, D.C.
The religious right reacted strongly against this new activism. Among the most publicized of its reactions was a referendum campaign organized in 1977 by television personality Anita Bryant. The former beauty queen and well-known promoter of Florida orange juice sought votes to overturn the new Dade County ordinance and quickly captured national headlines and attention. The gay community fought back, mounting its own highly publicized and successful boycott of Florida orange juice. Despite those efforts, voters repealed the ordinance in Dade County, and Bryant moved ahead, establishing a national office in Washington, D.C., and taking her campaign to Wichita, Kansas; St. Paul, Minnesota; and other cities that had recently
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The activism and backlash seen around the country were also being played out during the early 1970s inside Colorado. The first battle there took place in 1974 in Boulder where the city council approved a law prohibiting discrimination based on sexual orientation in employment. The issue had triggered such a volatile debate between supporters and opponents that the city council put the ordinance on the ballot and let the voters decide. The majority voted overwhelmingly to repeal the antidiscrimination law. But while most voters in a number of cities opposed such laws, they also seemed opposed to negative political campaigns aimed at a minority group. Bryant’s organized “crusade” against gay people across the country quickly fizzled, and by 1987, when Boulder voters were again asked to vote on whether they wanted a law to prohibit discrimination based on sexual orientation, they voted yes. The turnaround in Boulder was a sign that the gay civil rights movement had made some gains in the 13 years since that first referendum.
But the movement was also riding a political seesaw in Colorado. In November 1988, voters in Fort Collins, Colorado, rejected a ballot initiative that gay activists had proposed in hopes of amending the town’s human rights ordinance to prohibit discrimination based on sexual orientation. Two years later, the Denver city council approved such an ordinance. Right-wing activists put a referendum on the ballot and pressed voters to repeal the new law, but, in 1991, Denver voters decided to keep protections in place.
The political seesaw for gay people could be seen around the country, too. Supporters of equal rights for lesbians and gay men would win passage of laws; opponents would win ballot referenda to repeal them. But while opponents of such laws won 17 out of 22 square-offs around the country in the 15 years between 1974 to 1989, the two sides began to split victories thereafter, and, even when the progay campaigns lost, their margins of defeat were narrower than they had been in the early 1970S.
The level of activity by gay people to establish civil rights protections had expanded dramatically in the late 1980s, too. In 1982, only one state, Wisconsin, had a statewide law prohibiting discrimination
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In the midst of this surge of activity, Colorado governor Roy Romer, in 1989, issued an executive order prohibiting discrimination against people with AIDS, many of whom were gay men. And, in July 1991, the Colorado Civil Rights Commission recommended that the state adopt a law prohibiting discrimination based on sexual orientation.
That same year, the idea of an antidiscrimination law was also put on the agenda of the city council in Colorado Springs, a much more politically conservative town than Boulder or Denver. Colorado Springs was home to a large number of religiously oriented conservative groups, including many of the largest and most powerful right-wing organizations in the country. These groups fought the proposed law in Colorado Springs, and the council dropped the idea.
But stopping the proposed law in Colorado Springs was not enough for some activists of the religious right. Three of them—David Noebel, Tony Marco, and Kevin Tebedo—formed a new organization called Colorado for Family Values. They enlisted a local car dealer, Will Perkins, as their chairperson and began a campaign for a statewide initiative. They wanted not only to block the antidiscrimination ordinance in Colorado Springs but also to repeal the governor’s executive order and sexual orientation antidiscrimination laws that were on the books in other cities—Aspen, Boulder, and Denver. And they wanted to prevent any future efforts to pass antidiscrimination laws protecting gay people anywhere else in the state. Their inspiration, as the Denver Post put it, was their feeling that “America has deteriorated because it has turned away from literal interpretations of the Bible, and fundamentalist church teachings must play a bigger role in government.”7
6. Massachusetts enacted its law in 1989, followed by Connecticut and Hawaii in 1991, and New Jersey, Vermont, and California in 1992. Governors in the following states issued executive orders between 1975 and 1992: Pennsylvania, California, New York, Ohio, New Mexico, Rhode Island, Washington, Minnesota, Oregon, and Louisiana.
7. Michael Booth, “Colorado: Gay-Rights Battlefield,” Denver Post, September 27, 1992, A-7.
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The Role of Religion
This desire for church teachings to have a greater role in government had recently become a highly visible part of the national agenda for the religious right, which was regrouping after having suffered an embarrassing series of sex scandals involving prominent television evangelists and a decidedly negative public reaction to the televised speeches of some of its leaders at the 1992 Republican National Convention— speeches that derided gay people and attacked other vulnerable people, such as unmarried mothers. Suffering this tarnished image on the national level, the religious right turned its focus to the local level. Borrowing from a history of tactics used against the black civil rights movement, the religious right began seeking victories state by state. This time, instead of literacy tests and poll taxes to limit the power of African-Americans to vote, religious right activists sought to repeal laws prohibiting discrimination, to stop legal recognition of same-sex relationships, to bar even a neutral discussion of homosexuality in the classroom, and—in a preemptive strike through Amendment 2 and like initiatives—they sought declarations that lesbians, gay men, and bisexuals could not even ask the government to address their specific needs on the same terms as other citizens.
Pat Robertson, head and host of the Christian Broadcasting Network, had galvanized a comeback for such activists through a national cable television program that discussed newsworthy events with a religious perspective, through the creation of the national Christian Coalition to inform and motivate voter support for conservative, religious-based viewpoints, and with his bid for the Republican presidential nomination in 1992. He and others, such as James Dobson, head of the Focus on the Family organization in Colorado Springs, were using the powerful reach of television and radio programs to sign up millions of supporters and contributors around the country at the grass roots level and to mobilize them to the polls for important issues or races. Gay people were just one of their targets, for they were also organizing to prohibit women from obtaining abortions, to win government support for church-run schools funded by public money through school vouchers, and to promote prayer and religiously based views on sex education in the schools. Often, they blurred the lines between their target issues to get the maximum punch for their attacks. For instance, in opposing an equal rights
Keen, Lisa Melinda, and Suzanne Beth Goldberg. Strangers to the Law: Gay People On Trial. E-book, Ann Arbor, MI: University of Michigan Press, 1998, https://doi.org/10.3998/mpub.14593. Downloaded on behalf of Unknown Institution amendment measure for women in Iowa, Robertson sent out a letter claiming that the real motive of the “feminist agenda” was to encourage women to become lesbians.®
When Colorado for Family Values was formed, its organizers modeled their efforts on those of the national groups and put representatives from those groups onto CFV’s board, including individuals from Lou Sheldon’s Traditional Values Coalition, Dobson’s Focus on the Family, the antifeminist Eagle Forum, and Concerned Women for America.? CFV’s strategy for the campaign to promote Amendment 2 echoed that of a handbook called How to Defeat Gay Rights Legislation, written by an attorney for Concerned Women for America. That handbook urged its readers to warn voters that antidiscrimination laws must be repealed because they were just the tip of the iceberg of the “homosexual agenda.”*° An attorney for another right-wing group, the National Legal Foundation, founded by Pat Robertson, coached CFV on the specifics of language for Amendment 2 that would help avoid legal pitfalls. Focus on the Family, Dobson’s multimillion-dollar organization, gave CFV in-kind support and, in alliance with a right-wing think tank called the Family Research Council, distributed a publication that detailed how to start an initiative against the “Homosexual Agenda.”
While Amendment 2 was the first statewide test of a new prototype for antigay initiatives resulting from the collaboration of national and local conservative organizations seeking to secure a role for religion in government, the very first tests had been at the local level, in two California cities—Riverside and Concord—in 1991. The Riverside initiative had sought to repeal existing ordinances prohibiting discrimination based on AIDS and sexual orientation and to forbid any future laws protecting people on either of those grounds. It was proposed by a group called Citizens for Responsible Behavior, loosely affiliated with Traditional Values Coalition leader Lou Sheldon. But the Riverside
8. Aras van Hertum, “ERA Encourages Witches and Lesbians, Says Pat Robertson,” Washington Blade, August 28, 1992, 6. g. Anti-Gay Ballot Initiatives: An Analysis of Colorado’s Amendment 2—Strategies to Defeat Other Initiatives, a briefing book prepared and published by the American Civil Liberties Union Lesbian and Gay Rights Project, 1993, 43. 10. Lisa M. Keen, “Ballot Box Fights Are Far from Knock-Outs,” Washington Blade, December 8, 1989, 1. 11. “Constructing Homophobia: Colorado’s Right-Wing Attack on Homosexuals,” The Public Eye, March 1993, published by Political Research Associates, 5.
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City Council voted to keep the measure off the ballot, and a Riverside Superior Court judge and a California appellate court agreed that the measure violated the constitutional guarantee of equal protection because it lacked a rational justification and was motivated by prejudice. The Citizens group did not appeal further. The initiative in Concord, called Measure M, did get onto the November 1991 ballot due to the efforts of another Traditional Values Coalition affiliate called Concord United for Fair Law. Similar to initiatives in other cities in the 1960s that required popular votes on laws that prohibited racial discrimination, the Concord initiative sought to prevent the local government from passing any law involving sexual orientation. Measure M also sought to repeal an existing law prohibiting discrimination against gay people and people with AIDS. The initiative was narrowly approved by voters in November 1991 but was challenged in court. A trial court judge declared it unconstitutional, and, again, the initiative’s supporters did not appeal.
In May 1992, a group called Oregon Citizens Alliance (OCA) put a somewhat similar initiative on the ballot in two Oregon cities, Springfield (where it passed) and Corvallis (where it failed). Those initiatives, and a statewide version in November 1992, asked voters to ban laws that “promoted” homosexuality, pedophilia, sadism, and masochism. OCA leader Lon Mabon said he was unaware of the Colorado initiative until after he began his campaign and that his organization “linked up” subsequently with the Christian Coalition and got $20,000 from it. But beyond that, Mabon’s 1992 effort was an independent one, and his measure was defeated at the ballot box by a margin of 57 to 43 percent. The true test of the cooperative effort of national and local right-wing organizations took place in Colorado with Amendment 2, under the banner of fighting “special rights.”
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