David Frum has a column that makes the same slipperly slope argument about the recent Lawrence case overturning anti-sodomy laws. He brings up the precendent of Romer v. Evens, a 1996 case that overturned Colorado’s Proposition 2. Here’s how Frum describes that case:
Romer involved a voter initiative in state of Colorado: Proposition 2. Some towns in Colorado had amended their municipal law to include sexual orientation as a prohibited grounds of discrimination. The voters of the state then amended their state constitution to stop the towns and to settle the legal status of homosexuality in the state. The argument that won the day in Colorado was something like this: "We Coloradans regard homosexuality as a private matter, like smoking. If you are homosexual – that’s fine, that’s your business. But we’re not going to use the power of the state to punish people who disapprove of homosexuality. That’s their business. We want our laws to be neutral on the subject, neither anti-gay nor pro-gay."
Amendment 2 essentially gave the right for business to decriminate against homosexuals legally. Businesses could refuse someone a job merely because of their sexual orientation. Now I can understand not wanting a gay Scout leader, but what difference does it make if your Wal-Mart cashier is gay or not. Proposition 2 was legalized descrimination, pure and simple. It is no different than hanging a sign that says "No blacks or Jews need apply." Not only is it morally intolerable, it is also clearly against the concept of Due Process and Equal Protection. There is no rational justification for codifying what amounts to nothing more than a personal prejudice into law.
Now here’s the part that is relevant today. As Justice Scalia pointed out in his dissent, it would have been perfectly constitutionally OK in 1996 for the state of Colorado to criminalize homosexuality altogether by passing a sodomy law. The effect of Romer was to offer states a stark choice: Either you treat homosexuality as a crime, as Georgia does, and as we upheld in Bowers v. Hardwick in 1986. Or else you treat it is a protected category. There’s no in-between. Neutrality is not allowed.
Again, Frum is misstating the Romer decision. Homosexuality was not defined as a suspect class under the law. The Court applied a simple test to Amendment 2: is there a rational basis for this law. The Court could find no rational basis for the passing of this Amendment. There is no rational basis for passing a law that legalizes widespread decrimination against homosexuals. Frum is incorrect: if someone could pass a law that had a rational basis for denying homosexuals certain rights, then that right would meet the standards for scrutiny established in Romer. There is an in-between, and quite a large one at that.
See where this takes us? This week, the Supreme Court overturned Bowers v. Hardwick. States will no longer be permitted to treat homosexuality as a crime. By the logic of Romer that leaves them (as this Supreme Court sees it) no option but to treat it as a protected category.
Again, Frum misuses his legal terminology. Sexual orientation is not established as a suspect class in either Lawrence or Romer. If it had, the barrier of proof for laws discriminating against homosexuals would be based on a system of strict scrutiny. Under the current state of the law, the state needs only have a rational basis for discrimination. This is hardly treating homosexuality as a suspect class.
In other words, every form of distinction now drawn between homosexuality and heterosexuality – from the ban on avowed homosexuality in the military to the non-existence of same-sex marriage – has overnight become constitutionally suspect.
No, it has not. There is certainly a rational basis for homosexuals being barred from the military. There is an arguable rational basis for restricting marriage rights – although gay marriage will be a future issue that will come before the Court sooner or later.
That does not mean, it should be said, that they are constitutionally doomed. Justice O’Connor may bring her famous fuzzy logic to bear and say, like a child plucking daisies, "I like this rule, I like this rule not." So we may see a series of 5-4 votes in favor of overturning those rules that seem somehow archaic to her while sustaining 5-4 those rules that please her. It’s anybody’s guess which will be which. But in the end, all of them will likely be struck down.
Again, there’s the rational basis test. Neither Romer nor Lawrence has any rational basis other than raw prejudice behind it. The only justification that survives any scruting for enacting such laws is that "we don’t like gay people." Unfortunately for those who hold such prejudices, that is not a justification for legal action. The rational-basis test provides a clear line that allows the Court to ban certain acts such as polygamy and incest, while allowing homosexuals to have the same rights to personal privacy that the rest of us enjoy.