High Court Nixes Gay Rights Ban
BY Peter Fuerherd
June 09, 1996 Issue | Posted 6/9/96 at 2:00 AM
Catholic justices split over Colorado amendment
Special to the Register
WHEN THE U.S. Supreme Court last month nullified a Colorado amendment because it unconstitutionally singled out homosexuals as a group which could not benefit from anti-discrimination legislation, it fell to the two Catholic justices on the court to write both the decision and the dissenting opinion.
Anthony Kennedy, writing for the 6-3 majority, said that the Colorado amendment, passed by a narrow margin by the state's voters, had placed homosexuals there in a “solitary class,” denying them equal protection of the law. The amendment prohibited cities in Colorado from enacting gay rights legislation, overturning ordinances in Aspen and Denver, among other places. But the amendment, wrote Kennedy, was unconstitutional because “a state cannot so deem a class of persons a stranger to its laws.”
In a particularly scathing rebuttal, Justice Antonin Scalia accused the justices in the majority of taking sides in “the culture wars” by setting itself above the will of Colorado's voters, who approved the amendment by a six-point margin in 1992. The amendment, wrote Scalia, was designed to “prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans” and was “an appropriate means to that legitimate end.”
While it may well have been coincidence that the two Catholic justices on the Supreme Court wrote the opinions on the case, their positions reflect a tension present in the interpretation of Church teaching.
One portion of that teaching—that gay sexual behavior is immoral—is well-known. The other part—that homosexuals have human rights, like everyone else—is subject to diverse interpretations.
Colorado's bishops, like other prelates across the country facing controversial gay rights arguments, stayed neutral in the debate over the amendment and issued no comments on the Court's ruling. Some gay rights advocates have compared the decision to the famous Brown v. Board of Education case, which declared that racial segregation in public schools was illegal.
But Christian groups who promoted the amendment cried foul at the court's ruling. Will Perkins, chairman of Colorado Family values, told the Register that the justices had overreached their authority and should be impeached. “they made a new law and moved the goal posts,” Perkins said.
He argued that the court “has infringed on the voting rights of Coloradans” and that gay rights groups— with the support of Gov. Roy Romer—are now free to amend the state's constitution to include sexual orientation among categories for which discrimination is forbidden.
His group, composed largely of Christian evangelicals, is opposed to gay-bashing, said Perkins. But, he added, “we are resisting the idea that how people have sex should have no impact on their civil rights status.”
Other conservative leaders echoed Perkins. Gary Bauer, president of the Family Research Council in Washington, told The New York Times that the decision was an example of “an out-of-control unelected judiciary.” Tom Minnery, vice president of Focus on the Family, an evangelical Christian group based in Colorado Springs, told the Times that the effect of the ruling was to “disparage the moral views of the people of Colorado.” Perkins noted that while Church leadership remained neutral on the issue, Catholic areas in the state provided some of the strongest support for the anti-gay rights amendment. He expressed surprise that the state's Catholic officials had not emphasized a statement from Cardinal Joseph Ratzinger issued a few years ago in which the Vatican expressed its displeasure with the concept of gay rights legislation. The document argued that discrimination against homosexuals in the hiring of teachers and coaches, for example, could be morally justified under certain circumstances. Perkins warned that the court ruling could force churches which rent public space to cater to homosexual groups as well or be subject to fines and lawsuits.
However, Francis DeBernardo, director of New Ways Ministry, argued that the Court's decision is a positive reflection of Catholic social teaching on homosexuality. New Ways Ministry, based outside Washington in Mount Rainer, Md., is dedicated to promoting a positive view of homosexuals in the Catholic tradition. It has, however, run into opposition by some Church officials, including Cardinal James Hickey of Washington, who argues that New Ways has deemphasized the Church's teaching that homosexual activity is morally wrong. Its founders, Father Patrick Nugent and Sister Jeannine Grammick, are currently under investigation by a Vatican-appointed panel looking into their views on homosexuality.
“We are very pleased with the decision,” said DeBernardo, who noted that Catholic bishops around the country have in the past supported gay rights legislation. New Ways, said DeBernardo, hopes that the Court's decision “will be a signal that legislation designed to discriminate against gays and lesbians is unjust and will not hold up in the Supreme Court.”
He argued that amendment supporters often sent out messages “filled with hate” against homosexual people. And he disputed Scalia's assertions that gays did not deserve legal protection, because “those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, have high disposable income” and “possess political power much greater than their numbers.” DeBernardo said that Scalia's language reflects “the rhetoric of hate which has been used against many other groups.”
But while some gay activists have compared the court's ruling to the Brown decision, DeBernardo was more cautious. “I'm not sure it will ensure gay and lesbian rights in all 50 states,” he said. But, he emphasized, it will “prevent other states from trying to use these tactics” of calling for a referendum against gay rights laws.
While Catholic officials have largely been mum on the Court's ruling, DeBernardo said that Kennedy's decision is actually a reflection of Catholic social teaching about homosexuality. “it promotes the same agenda the Church is promoting, equal rights regardless of orientation,” he said.
Carmelite Father Peter Luizzi, director of Ministry with the Gay and Lesbian Community for the Archdiocese of Los Angeles, noted that Church officials have strongly opposed homosexual marriage and other goals promoted by gay rights activists. But there is a body of Church teaching, said Father Luizzi, which recognizes that homosexuals have rights—not because of their sexual preference, but because they are human beings. Such a view, he said, “is part of the distinctions and nuances that we as Catholics make;” that, he added, makes Church teaching unpopular with both militant gay activists and evangelical Christian organizations opposed to homosexual rights.
The views of Scalia and Kennedy are examples of two different strains of contemporary Catholic thought, said Father Luizzi, who argued that Scalia failed to acknowledge the dimension of Church teaching which argues that homosexuals are entitled to rights.
“Catholics have a unique contribution to make because we are well-nuanced. Catholic teaching,” Father Luizzi said, is based on a “radical center” approach which stays clear of both gay rights activism and the militant opposition of many evangelical Christians.
For Kennedy, special attempts to bar gay rights legislation are evidence of unconstitutional “animus” towards homosexuals, a position which cannot be justified for any legitimate public policy purpose. Scalia, on the other hand, argues that the Colorado amendment to bar gay rights legislation is “simply a modest attempt &hellips; to preserve sexual mores against the efforts of a politically powerful minority.”
One gay rights lawyer said it was the most important decision ever made in the legal battle over homosexuality. The ruling, some said, may have an impact on laws about gays in the military, sodomy laws, custody battles between gay and straight parents and even laws forbidding gay marriage.
Whether the Court's ruling will be narrowly applied or lead to a further recognition of homosexual rights has yet to be seen. What is certain, however, is that the arguments presented by the Court's two Catholics will figure prominently in future debate.
Peter Fuerherd, the Register's domestic affairs correspondent, is based in New York.
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