Homosexuals: A Suspect Class?


The struggle for minority protection by lesbians and gay men has moved
to the center of American life at the outset of the 1990\'s. It is almost
certain that lesbian and gay issues will be a more eminent aspect of the public
consciousness and American political scene in the coming decade than in any
other time in American history. Policy changes early in Bill Clinton\'s
administration created a heated debate over the military presence of gays and
lesbians, several states have passed amendments prohibiting laws that protect
homosexuals from discrimination, and nearly every religious organization in the
nation is facing tough questions ranging from the ordination of homosexuals to
homosexual marriages. Furthermore, the homosexual community is more prominent
than ever: Lesbians and gay men are fighting for civil rights in the courtroom
and in Congress, there are gay characters on prime-time television shows, well-
known public figures openly discussing their homosexuality, and there is
virtually no one who can claim that they have never had contact with a
homosexual. In the middle of all this publicity, there lingers a pending
Supreme Court case in which the fate of the homosexual lies: Romer v. Evans, a
case that dominated Colorado that has come to "symbolize the controversy over
gay legal rights" throughout the nation. This paper will trace the elements
behind that case, and attempt to focus on the steps the Supreme Court will
follow to determine whether homosexuality must be legally considered a "suspect
class" for the purposes of "quota preferences, protected status or claim of
discrimination" as outlined by Colorado\'s now-famous Amendment 2.
Amendment 2 does away with any attempt to protect homosexuals as a group
that needs special rights because of discrimination. It was enacted after a
statewide referendum, in which 53% voted for the measure. Richard Evans sued
the state and Governor Romer (who, ironically, opposed the amendment) under the
Fourteenth Amendment\'s Equal Protection Clause, saying that Amendment 2
infringes upon the homosexual\'s "fundamental right to participate in the
democratic process." Romer v. Evans has had amicus curiae or "friend of the
court" briefs filed for both sides--briefs that have pitted state against state
and church against church. Colorado officials are quick to say that their state
is not acting out of hate, but merely deciding in a democratic fashion whether
homosexuals need to be singled out for protection against discrimination. The
Colorado Supreme Court, however, struck down the amendment, saying:
[Amendment 2] bars gay men, lesbians and bisexuals from having an
effective voice in governmental affairs, insofar as those persons deem it
beneficial to seek legislation that would protect them from discrimination based
on their sexual orientation. The United States Supreme Court must now determine
whether or not to uphold the Colorado Supreme Court\'s decision, despite the
results of the referendum that was basically a public affirmation of orthodox
Christian beliefs.
For hundreds of years homosexuality has been uniformly condemned by
traditional Christian societies as immoral. On that ground, it was never
contested 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 that
homosexuality is possibly inherited and determined by chromosomes. A 1992 study
directed by neuroscientist Simon LeVay showed that a tiny area believed to
control sexual activity known as the hypothalamus was less than half the size in
gay men as in heterosexual men. This study raises an interesting question: If
homosexuality is hereditary, is there any basis for societal discrimination
against something innate?
The reactions of the homosexual community have been mixed. As many see
it, looking for a "cause" of homosexuality suggests that it is an abnormality,
and implies that it is deviant from a "normal" heterosexuality. On the other
hand, history has shown that society\'s perception of gay activities can be
threatening, if not deadly. Over the centuries they have either been merely
"intolerated" or, more often, detested. After a 13th century sermon from Saint
Thomas Aquinas, society began to view gays as "not only unnatural but
dangerous." A genetic component in sexual orientation would tell homosexuals
and the world that homosexuality is not a fault, and not the fault of anyone
other than nature.
Society\'s traditional stance on homosexuality has often subjected
homosexuals to a horrifying list of "cures" at the hands of psychiatrists and
psychologists--usually aimed at heterosexual reorientation. Treatments like
these have almost invariably involved a "negative value judgment concerning the
inherent character" of homosexuality. Among these "cures" have been such
surgical measures as castration, hysterectomy, and vasectomy; others have
included electric and chemical shock treatment, aversion therapy, and