Irrationality Prevails in Gay Rights Ruling

Affirmation and tolerance are not the same. Neither is special preference and equality of treatment. Yet the Supreme Court has unhappily confused the two in its 6-3 decision invalidating an amendment to the Colorado Constitution that voters passed to express the state’s desire to stay legally neutral in the cultural strife that is homosexuality.

The case arose when various Colorado cities chose not to remain neutral, but to give “sexual orientation” (the code words for homosexuality) an exalted place under the law.

As a general matter, landlords, schools and employers can decide whom to house or employ free of legal constraint, as long as an objectively impermissible ground like race is not used. The prohibition of the use of race, of course, represents not just law, but cultural consensus that race, as a quality, tells us nothing about the content of a person’s character or ability.

The same cultural consensus does not exist with regard to homosexuality. While activists argue today that homosexuality is merely an “alternative” form of sexual expression, in fact, it has historically been viewed as morally wrong and socially harmful. Homosexuality stands in antithesis to marriage relationships that are open to new life and the creation of stable environments for the nurture and moral formation of children.

For this reason, homosexual conduct (sodomy) has long been criminally punished under common law, and significant religious instruction treats homosexual orientation as inextricably related to that conduct. The Colorado Supreme Court itself opined that orientation and conduct are not truly severable, writing that “each provides nothing more than a different way of identifying the same class of persons.” Logic tells us as much.

Now, no person should be deprived of equality under generally applicable laws merely because of sexual status. Thus, it would be wrongful for insurance companies to deny homosexuals or anyone else coverage for reasons unrelated to anticipated risks. By the same token, it does not follow that homosexuals, and only homosexuals, must be offered insurance regardless of risk. One is equal treatment, the other is favoritism.

It was the avoidance of favoritism that Coloradans incorporated into their state constitution by initiative amendment in 1992. The amendment precluded the state or any of its parts, including schools, from adopting laws or policies whereby “homosexual, lesbian or bisexual orientation [or] conduct” shall entitle any such person to special legal protection.

Monday, the Supreme Court held such denial of preference a violation of equal protection under the federal Constitution.

The court had only assertion on its side. Every constitutional provision--indeed, every law, state or federal--draws lines. Some ardent religionists might like a theocracy, but the 1st Amendment’s prohibition of legally established churches puts that off-limits. It would be “terminally silly,” as the dissent by Justice Antonin Scalia pointed out, to think of such constitutional limits as violations of equal protection.

Curiously, the court did not even mention the 1986 decision upholding state laws that make homosexual conduct criminally punishable. One would think that if it is rational to criminalize homosexual conduct, surely it is reasonable to refuse to grant special advantage to those with a self-avowed tendency or orientation to engage in that conduct. More than a rational basis exists for upholding such refusal. In addition to maintaining the traditional moral view that the sexual relationships that are open to procreation sustain society, Coloradans made it plain that they wanted to respect citizen freedom of association, especially in an area fraught with deeply felt personal or religious belief.

Unlike Colorado, which sought to avoid the granting of special protection to controversial behavior, the Supreme Court apparently seeks to label as irrational “animus” the setting of moral standard. It is not part of the American heritage to hate any class of human beings. However, it is part of the history of cultures that wish to survive to deny some practices, be they drug use or the possession of assault weapons. By refusing to grant special treatment to homosexuality, Colorado sought even less: namely, to maintain legal neutrality, allowing limits to emerge from private moral judgment.

Now, this is not possible. The Supreme Court has taken sides in the culture war. And on this question, the court is opposed to all moral judgment, public or private, but its own.