Laws giving special legal rights to homosexuals
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| English: Antonin Scalia, Associate Justice of the Supreme Court of the United States (Photo credit: Wikipedia) |
Prior to 1992, Denver, Boulder, and Aspen in Colorado had passed laws banning discrimination against homosexuals in those cities. At first such laws sounded reasonable to people—who wants to be in favor of “discrimination”? The United States already has such laws forbidding discrimination against people because of race, gender, or age, for example.
But on further reflection, when such laws include homosexuals, then will a Christian photographer be forced to take the job if asked to photograph a homosexual “wedding”? This happened in New Mexico, when a young photographer named Elaine Hugenin had a complaint filed against her by a lesbian couple because she respectfully declined to photograph their same-sex “commitment” ceremony. The New Mexico Human Rights Commission ordered Elaine and her husband to pay nearly $7,000 in attorney fees to the couple, even though same-sex “marriage” isn’t even legal in New Mexico. The Alliance Defense Fund has appealed her case to the New Mexico trial court.24
Will a church be forced to rent its facilities to homosexuals for a homosexual “wedding”? This occurred in New Jersey when the Ocean Grove Camp Meeting Association of the United Methodist Church declined to rent its worship pavilion to two lesbian couples for a “civil union” ceremony. The lesbians filed a complaint with the state civil rights commission, and the association lost its tax-exempt status for the pavilion. The Alliance Defense Fund filed a lawsuit against the state of New Jersey to defend the ministry’s right to not be forced to rent its property for activities contrary to its beliefs. The tax-exempt status was subsequently restored, at least until the case is concluded.
Will a Christian couple who own a private guest house or a bed-and-breakfast be forced to rent a room to a homosexual couple? Will a Christian bookstore or Christian radio station be forced to hire a qualified homosexual who applies for a job? Or will any owner of a small business be forced to hire a homosexual who applies for a job, out of fear of being hit with an antidiscrimination lawsuit, even if he thinks that homosexual conduct is harmful or wrong? And will elementary schools then be forced to teach children that homosexual conduct is a morally good choice for those who want to choose it? (This has already happened in California, where Governor Arnold Schwarzenegger signed S.B. 777, which redefines a student’s sex as his or her “gender identity,” relying on a student’s feelings rather than biology as to whether the student is male or female.) Will parents be forced to keep their students in school for such instruction, since this is now the position of the law?
Previously, homosexuals were protected by the same laws that protect everyone else in society, but these new laws went further and made homosexuals a special class of people who were given special privileges under the law and special protections. These laws gave homosexual behavior a privileged position under the law and began to make it increasingly difficult for people who thought homosexuality was destructive to society and/or morally wrong to express their viewpoint, conduct their businesses, and raise their children in a way consistent with their viewpoint.
Because of such considerations, a number of Colorado citizens disagreed with such “gay rights laws” that had been passed in the cities mentioned, and they proposed an amendment to the Colorado constitution that would prevent such laws anywhere in the state. This amendment to the state constitution passed with a vote of 53.4% on November 3, 1992. The amendment prohibited the state or local governments in Colorado from passing laws that gave special protection to “homosexual, lesbian or sexual orientation, conduct, practices, or relationships” or entitled such persons to have a claim to “any minority status, quota preferences, protected status or claim of discrimination.”
But Amendment Two was challenged in the courts and appealed all the way to the US Supreme Court. In the case Romer v. Evans, announced on May 20, 1996, by a 6-to-3 majority, the Supreme Court overturned this amendment to the Colorado constitution.
Once again, it is important to observe what happened. The question about whether homosexuals should be given special rights and protections under the law is a decision of great significance to any society. The citizens of Colorado decided not to give such special protections, by a statewide vote in a democratic process. (Homosexuals were always protected by all the other laws of the state, as were all other citizens, so the only question was whether to make them a class deserving of special protection.) But the US Supreme Court decreed that the citizens of Colorado did not have the right to make that decision by themselves. Instead, the court made the decision for them and overturned the democratic process of deciding this matter.
Once again, nothing in the US Constitution says anything about giving special rights to homosexuals. But the Supreme Court “discovered” this right, supposedly in the Constitution.
Even more troubling is the reasoning the court used. Writing for the majority, Justice Anthony Kennedy said of the amendment, “Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects: it lacks a rational relationship to legitimate state interests.”
Many of the supporters of Amendment Two were Christian voters who held to traditional moral values regarding sexual conduct. They were attempting to uphold traditional standards of sexual morality. But Justice Kennedy ruled that the amendment “lacks a rational relationship to legitimate state interests.” Apparently the Supreme Court was saying that traditional moral standards, to say nothing of Christian moral values, lack any “rational relationship to legitimate state interests.”
So we should ask, did the Constitution or its authors or signers ever intend that traditional moral values should be excluded as a basis for state laws? No. Did the Constitution ever say anything guaranteeing that homosexuals would be considered a special class, accorded special protections under the law? No. These are new policies imposed on the nation by six justices of the Supreme Court.
Not surprisingly, Justice Antonin Scalia (joined by Rehnquist and Thomas) strongly dissented from this decision. Scalia said that Amendment Two was “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” He added, “Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions.… I think it no business of the courts (as opposed to the political branches) to take sides in this culture war. But the court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes.”
Justice Scalia concluded as follows:
Today’s opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adapted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment Two is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.
But the Supreme Court’s decision was 6–3, and it was then the law of the land. Because of the power of the Supreme Court, there was now nothing that any citizen, or any majority of citizens in any state, or any majority of citizens in the entire nation, could do to change it. The issue was decided, not by the people of the United States, but by the court.
Grudem, W. A. (2010). Politics according to the Bible: A Comprehensive Resource for Understanding Modern Political Issues in Light of Scripture (pp. 141–144). Grand Rapids, MI: Zondervan.
