Wigstock and the kulturkampf: Supreme court storytelling, the culture war, and Romer v. Evans

Notre Dame Law Review

Volumn 72, Issue 2, 1997, Pages 345-371

  Duncan, Richard F ^a  

^a UNIVERSITY OF NEBRASKA LINCOLN   (United States)

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EID: 26444506073     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (159)

1. PETER KREEFT, ECUMENICAL JIHAD 17 (1996).
2. See generally JAMES DAVISON HUNTER, CULTURE WARS: THE STRUGGLE TO DEFINE AMERICA (1991).
3. Id. at 316.
4. 116 S. Ct. 1620 (1996). The case generated two separate opinions below by the Colorado Supreme Court. See Evans v. Romer, 854 P.2d 1270 (Colo. 1993) (en banc); Evans v. Romer, 882 P.2d 1335 (Colo. 1994) (en banc), aff'd, 116 S. Ct. 1620 (1996).
5. If allowed to go into effect, Amendment 2 would have been COLO. CONST. art. II, § 30b: No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing. Romer, 116 S. Ct. at 1623.
6. I believe this proverb is an old one, but I most recently encountered it in an article by Frederick Schauer. Frederick Schauer, Too Hard: Unconstitutional Conditions and the Chimera of Constitutional Consistency, 72 DENV. U. L. REV. 989, 1004 (1995).
7. Say, for example, a local newspaper had published a story about a rash of assaults on homosexuals in public parks, and undisclosed members of the police force were quoted as saying they would "do nothing" to protect homosexuals from these illegal attacks.
8. Laurence Tribe and several other scholars wrote a very influential amicus brief in Romer that repeatedly urged the Court to consider the all-encompassing scope of Amendment 2. Brief of Laurence H. Tribe, John Hart Ely, Gerald Gunther, Philip B. Kurland, and Kathleen M. Sullivan, as Amici Curiae in Support of Respondents, Romer v. Evans, 116 S. Ct. 1620 (1996) (No. 94-1039) [hereinafter Tribe Brief]. Tribe argued that: [a]ll the Court needs to decide in order to affirm the judgment below is that a state's constitution by definition denies equal protection of the laws when it decrees that homosexuality, or indeed any identifying characteristic the state uses to select a person or class of persons from the population at large, may never be invoked as the basis of any claim of discrimination by such persons under any present or future law or regulation enacted by the state, its agencies, or its localities. Id. at 3.
9. See Richard F. Duncan & Gary L. Young, Homosexual Rights and Citizen Initiatives: Is Constitutionalism Unconstitutional?, 9 NOTRE DAME J.L. ETHICS & PUB. POL'Y 93, 130-34 (1995).
10. Romer, 116 S. Ct. at 1623.
11. Id. at 1627.
12. The quoted language, of course, echoes Gertrude Stein's famous description of Oakland. GERTRUDE STEIN, EVERYBODY'S AUTOBIOGRAPHY 289 (1937).
13. Professor Stephen Gillers, who agrees with the results in Romer, describes Justice Kennedy's majority opinion as "so weak as to be astonishing." Getting a Read on Romer v. Evans, LEGAL TIMES, May 27, 1996, at 8.
14. On the ReligionLaw discussion group, Romer was compared to Brown v. Board of Education by some and said to have effectively overruled Bowers v. Hardwick by others. Newspapers across the country proclaimed a great victory for homosexual rights. The headline in the New York Times, which proclaimed "Gay Rights Laws Can't Be Banned, High Court Rules," was typical of this spin on Romer. See Linda Greenhouse, Gay Rights Laws Can't Be Banned, High Court Rules, N.Y. TIMES, May 21, 1996, at A1.
15. One legal analyst went so far as to suggest that Romer may require the states to recognize same-sex marriage because the heterosexual norm for civil marriage is based upon a "'bare animus' against a group of people." Getting a Read on Romer v. Evans, supra note 12, at 8.
16. See also William Eskridge, Credit Is Due, THE NEW REPUBLIC, June 17, 1996, at 11. For a discussion of Romer's impact on marriage laws, see infra notes 64-72 and accompanying text.
17. 478 U.S. 186 (1986).
18. Romer, 116 S. Ct. at 1627.
19. Id.
20. At oral argument Justice Kennedy described Amendment 2 as creating a classification "adopted to fence out" homosexuals "for all purposes." He then remarked "I've never seen a statute like that." U.S. Supreme Court Official transcript at *5, Romer, 1995 WL 605822 (No. 94-1039).
21. Romer, 116 S. Ct. at 1627.
22. Id. at 1629.
23. Id.
24. Id.
25. We had a lengthy group discussion of this issue on the ReligionLaw list. My views and insights have been enriched and honed by these cyberspace exchanges.
26. As Robert Bork has observed, "[t]he freedom of the majority to govern and the freedom of the individual not to be governed remain forever in tension." ROBERT H. BORK, THE TEMPTING OF AMERICA 139 (1990). Justice White was very much aware of this tension in Bowers, and he was particularly concerned about the legitimacy of the Court adopting an expansive view of its authority to "discover new fundamental rights imbedded in the Due Process Clause." Bowers, 478 U.S. at 194. "The Court is most vulnerable," proclaimed Justice White, "and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution." Id.
27. Bowers, 478 U.S. at 192-93.
28. Id. at 197 (Burger, C.J., concurring).
29. Id. at 194.
30. Id. at 196.
31. Id.
32. See Romer, 116 S. Ct. at 1631-33 (Scalia, J., dissenting).
33. Id. at 1631 (Scalia, J., dissenting).
34. Id. at 1629.
35. Id. at 1627 (emphasis added).
36. Id.
37. Tribe Brief, supra note 8, at 8.
38. Laws forbidding private discrimination on the basis of sexual orientation restrict liberty, and stigmatize traditional beliefs about sexual ethics as invidious and immoral. For example, when the law tells a deeply religious landlord that it is wrong for her to refuse to rent an apartment to a homosexual couple, it has the effect of legitimizing homosexuality and delegitimizing the landlord's traditional religious beliefs. By passing Amendment 2, the people of Colorado decided to remove the stigma and associated harms inflicted on traditionalists by state and local homosexual rights legislation. This, in my opinion, is a very good thing to do. See Duncan & Young, supra note 9, at 126-30.
39. Justice Kennedy declared that he had-never before seen a law that classifies a particular group and fences it out "for all purposes." Justice O'Connor worried that a homosexual who was denied the right to borrow a library book would apparently have no legal recourse. Justice Ginsburg was concerned that a hospital might deny homosexuals access to a kidney dialysis machine. Other questions focused on homosexuals hypothetically being denied services by the police, the health department, and the insurance commissioner. See, U.S. Supreme Court Official Transcript, Romer, 1995 WL 605822 (No. 94-1039); Linda Greenhouse, U.S. Justices Hear, and Also Debate, a Gay Rights Case, N.Y. TIMES, Oct. 11, 1995, at A1.
40. Romer, 116 S. Ct. at 1627.
41. See id. at 1632 (Scalia, J., dissenting).
42. See Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235, 236 (1994).
43. 481 U.S. 739 (1987).
44. Id. at 745.
45. Dorf, supra note 39, at 239. Professor Dorf calls the Salerno test a "truly draconian standard" and argues that the test "finds little support in the Supreme Court's cases and is unsound in principle." Id. at 239, 294. Dorf argues that "substantially overbroad" laws - in the sense that potentially invalid applications are substantial when compared to valid applications - should be subject to facial invalidation. Id. at 276.
46. See id. at 261.
47. Salerno, 481 U.S. at 745.
48. Romer, 116 S. Ct. at 1632 (Scalia, J., dissenting).
49. Dorf, supra note 39, at 279. Dorf cites Edwards v. Aquillard, 482 U.S. 578 (1987), as evidence that the Salerno rule "does not apply to facial challenges to statutes with an unconstitutional purpose." Id. at 280.
50. Romer, 116 S. Ct. at 1627.
51. Id. at 1629.
52. Id. The primary reasons advanced by the State in support of the Amendment were the liberty interests of employers and landlords, and Colorado's interest in "conserving resources to fight discrimination against other groups." Id. These interests are clearly legitimate ones. They failed to support Amendment 2 only because the Court found the "breadth of the Amendment" was "so far removed from these partic-ular justifications" as to render them inoperative. Id. Having made this determination, the Court concluded that the Amendment "is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests." Id.
53. Id.
54. See Dorf, supra note 39, at 274-75. See, e.g., Nabozny v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996) (holding that no rational basis exists "for permitting one student to assault another based on the victim's sexual orientation" where a public school failed to protect an openly gay student from physical assaults and harassment).
55. 497 U.S. 502 (1990).
56. Id. at 514.
57. For example, the Aspen ordinance, which prohibits discrimination in employment, housing, and public accommodations on the basis of sexual orientation, contains no exceptions. It applies to all employers, all housing, and all public accommodations without regard to the size of the business or the religious conscience of persons subject to the restrictions. There is not even an exception for churches and religious ministries. See Aspen, Colo. Mun. Code § 13-98. In his dissenting opinion in Evans v. Romer, Colorado Supreme Court Justice Erickson stated that the Aspen ordinance requires "churches to open their facilities to homosexual organizations if the facilities were opened to any community organization." Evans v. Romer, 882 P.2d 1335, 1363 (Colo. 1994) (en banc) (Erickson, J., dissenting), aff'd, 116 S. Ct. 1620 (1996). Thus, if a church in Aspen allows, say, a local right-to-life group to conduct a meeting on its premises, it must grant equal access to homosexual organizations. Of course, at least some religiously motivated dissenters might be able to claim a religious freedom exception under the First Amendment or the Religious Freedom Restoration Act. See generally Richard F. Duncan, Who Wants to Stop the Church: Homosexual Rights Legislation, Public Policy, and Religious Freedom, 69 NOTRE DAME L. REV. 393 (1994). But litigating a free exercise claim is not a cost-free process, and religious freedom exemptions do nothing for employers and property owners whose opposition to homosexuality is based upon secular notions of sexual morality.
58. Romer, 116 S. Ct. at 1629 (Scalia, J., dissenting).
59. Id. at 1627. This is what Justice Kennedy presumably meant when he said Amendment 2 "is at once too narrow and too broad." Id. at 1628. The Amendment was too narrow because it "targeted" a "single named group" - homosexuals and bisexuals. Id. at 1626-27. It was too broad because it imposed "a broad and undifferentiated disability" on that targeted class by denying them "protection across the board." Id. at 1627-28. The hypothetical initiative does not single out a small group of persons; rather, it applies to a trait - sexual orientation - shared by every single person in the human community, because each one of us has sexual orientation.
60. Id. at 1627.
61. Id. at 1628.
62. Id. at 1627.
63. See Duncan & Young, supra note 9, at 130-34.
64. Dolan v. City of Tigard, 114 S. Ct. 2309, 2320 (1994) (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)).
65. Romer, 116 S. Ct. at 1629.
66. The proposed initiative also serves the legitimate interest of preserving "traditional sexual mores against the efforts of a politically powerful minority to revise those mores" by passing local ordinances that equate opposition to sexual immorality with racism and sexism. Id. at 1629 (Scalia, J., dissenting).
67. Getting a Read on Romer v. Evans, supra note 12, at 8. Professor William Eskridge, an articulate academic advocate of the homosexual legal agenda, made the same point in a recent essay calling for legal recognition of homosexual marriage. Eskridge, supra note 13, at 11.
68. The phrases "same-sex marriage" and "homosexual marriage," as used in this Article, refer to a legal marriage between persons of the same gender.
69. See Richard F. Duncan, Homosexual Marriage and the Myth of Tolerance: Is Cardinal O'Connora "Homophobe"?, 10 NOTRE DAME J.L. ETHICS & PUB. POL'Y 587, 589 (1996). In Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), the Supreme Court of Hawaii held that the Hawaii marriage statute, which does not permit same-sex marriage, discriminates on the basis of gender and therefore triggers strict scrutiny under the state constitution. The case was remanded to the trial court to allow the state an opportunity to meet its burden of justifying the marriage law "by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgements of constitutional rights." Id. at 68.
70. The analysis in this Article is limited to the impact of Romer on marriage laws. Romer applied a rational basis test to Amendment 2. Some commentators have argued in favor of stricter scrutiny for laws that deny recognition to homosexual "marriages." See, e.g., Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994).
71. See Duncan, supra note 66, at 592-93.
72. Id. at 596 (quoting Professor Lynn Wardle).
73. Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1996 BYU L. REV. 1, 85-86.
74. Id. at 87.
75. For an articulate argument in support of legal recognition of homosexual marriages, see ANDREW SULLIVAN, VIRTUALLY NORMAL: AN ARGUMENT ABOUT HOMOSEXUALITY, 178-87 (1995).
76. See generally MELISSA WELLS-PETRY, EXCLUSION: HOMOSEXUALS AND THE RIGHT TO SERVE (1993);
77. William A. Woodruff, Homosexuality and Military Service: Legislation, Implementation, and Litigation, 64 UMKC L. REV. 121 (1995).
78. Pub. L. No. 103-160, § 571, 107 Stat. 1670 (1993) (codified at 10 U.S.C.A. § 654 (West Supp. 1996)).
79. 10 U.S.CA. § 654(b) (1). The term "homosexual act" is defined as "any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires." Id. § 654(f) (3).
80. Id. § 654(b) (2).
81. Id. § 654(b) (3).
82. See Woodruff, supra note 73, at 155. In other words, a self-declared "homosexual" must demonstrate that he or she is not a "homosexual" as defined by the statutory policy. See 10 U.S.C.A. § 654(f) (1) (defining "homosexual" as "a person regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts . . . .")
83. See Woodruff, supra note 73, at 155.
84. 10 U.S.C.A. § 654(a).
85. Id. § 654(a) (4).
86. Id. § 654(a) (5), (6).
87. Woodruff, supra note 73, at 123.
88. 10 U.S.C.A. § 654(a) (15).
89. Woodruff, supra note 73, at 165. When Justice Kennedy was on the Court of Appeals in the Ninth Circuit, he specifically found that the Navy's "general policy of discharging all homosexuals is rational." Beller v. Middendorf, 632 F.2d 788, 809 n.20 (9th Cir. 1980). This precedent did not escape Justice Scalia's notice in Romer. See Romer, 116 S. Ct. at 1632 (Scalia, J., dissenting).
90. Woodruff, supra note 73, at 165. Soldiers and sailors often are required to live in "communal settings that force intimacy and provide little privacy." Id. at 161 (quoting General Colin Powell). Woodruff provides a cogent explanation of how homosexuality - in this unique context - can disrupt the bonding and cohesion essential to military effectiveness: To provide a modicum of privacy in these situations, the military has traditionally segregated bathing and sleeping facilities by gender. The presumption underlying gender segregation is that people are sexually attracted to the opposite sex. Thus, most people view being forced to sleep, shower, and use toilet facilities with members of the opposite sex as an infringement of their privacy. When the underlying presumption is not valid, e.g., when individuals find members of the same gender sexually attractive, the invasion of privacy occurs even in gender segregated facilities. This, in turn, disrupts the bonding and cohesion vital to military effectiveness. Id. Andrew Koppelman argues that the privacy argument fails because the "sexual gaze" of homosexuals "is not peculiar to the military. Civilians experience it all the time in public restrooms and changing rooms at the beach or in the gym." Andrew Koppelman, Gaze in the Military: A Response to Professor Woodruff, 64 UMKC L. REV. 179, 190 (1995). This counterargument is unpersuasive. Civilians are not required to share living and sleeping quarters with strangers who may be sexually attracted to them. Woodruff's point is that even soldiers are endued to "a modicum of privacy in these situations." Woodruff, supra note 73, at 161.
91. Thomasson v. Perry, 80 F.3d 915, 922 (4th Cir.), cert. denied, 65 U.S.L.W. 3305 (U.S. Oct. 21, 1996) (No. 96-1). In Thomasson, the Fourth Circuit upheld the constitutionality of the statutory policy.
92. Id. at 923. The court noted that extensive Congressional hearings were held on the issue and the witnesses who testified at these hearings "represented a broad range of views and backgrounds." Id. at 922.
93. Professor Woodruff's important article has already performed that task. See Woodruff, supra note 73, at 155-78. Woodruff makes an important distinction between the statutory policy and the Department of Defense regulations issued to implement the law. He believes the latter "contradict the expressed views of Congress in several important areas, are inconsistent with the statutory scheme in other respects, and weaken the overall basis of the statute by creating irrational and illogical presumptions." Id. at 173. For an impassioned response to Woodruff, see Koppelman, supra note 86. Professor Koppelman notes that the heterosexual proclivities of male and female officers in the armed forces have also endangered military discipline and suggests ironically that perhaps "the only solution is wholesale castration." Id. at 190. For Woodruff's reply to Koppelman, see William A. Woodruff, A Reply to Professor Koppelman, 64 UMKC L. REV. 195 (1995).
94. WIGSTOCK: THE MOVIE (Goldwyn 1995).
95. Wigstock features performances by Misstress Formika, RuPaul, The Lady Bunny, and (my personal favorite) the Duelling Bankheads, "a pair of dressed-in-black queens who do Tallulah Bankhead singing 'Born to Be Wild.'" Edward Guthmann, Lady Bunny Goes Uptown in Drag/Mainstream Release for "Wigstock," S.F. CHRON., June 20, 1995, at E1. The movie also introduces us to the Wigstock Dancers, a troop of heel-kicking drag queens described in the film as having been "recruited from all over - the Port Authority men's room, Rikers Island, the piers." Barry Shils, the writer and director of Wigstock, said in an interview that the film was designed to make drag "mainstream." Id.
96. The homosexual activist group Queer Nation has been credited with coining this rallying cry. See Chris Dickinson, The Music is the Message: Some Radical Gay Bands Put Their Sexuality Way Up Front, ST. LOUIS POST-DISPATCH, Apr. 21, 1996, at 3C (Magazine).
97. PAUL MONETTE, BECOMING A MAN: HALF A LIFE STORY 2 (1992). Monette won the 1992 National Book Award for this autobiographical account of growing up homosexual in America. Monette's hatred for people of faith and the Word of God calls to mind the following proverb: "An unjust man is an abomination to the righteous, and he who is upright in the way is an abomination to the wicked." Proverbs 29:27. Of course, the reason we are waging Kulturkampf is we don't agree on the identity of the "wicked" and the "upright." However, it is clear that homosexual fundamentalists - such as Monette - believe that traditional Christianity is homophobic and, therefore, an abomination. Justice Kennedy's opinion in Romer, while not going this far, employs some of the same frightening rhetoric.
98. WIGSTOCK: THE MOVIE (Goldwyn 1995). Misstress Formika, whose real name is Michael, also provides a less theatrical analysis of contemporary culture. Offstage and sans wig, she/he observes: "They're trying to brainwash us to be prejudiced, to be close-minded, to be Republicans. It's not going to happen. Not as long as I'm around."
99. Akhil Reed Amar, Attainder and Amendment 2: Romer's Rightness, 95 MICH. L. REV. 203, 207, 223-24 (1996).
100. Professor Stephen Gillers agrees that Kennedy's opinion is a product of the dominant insider narrative. As he puts it, the Romer majority simply seemed to be saying "We read the press and the better magazines" and we understand that Amendment 2 is based upon "hate and we won't tolerate hate, so beat it." Getting a Read on Romer v. Evans, supra note 12, at 8.
101. Amar, supra note 94, at 224.
102. See Amar, supra note 94.
103. Romer, 116 S. Ct. at 1628 (quoting Department of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).
104. Amar, supra note 94, at 222. Amar's analysis of Romer is thoughtful, creative, and provocative. However, it is unpersuasive because it is based on the same unrealistic narrative that animates Kennedy's opinion. For a discussion of why the narrative of homosexual fundamentalism is not the true story of Amendment 2, see infra notes 120-54 and accompanying text.
105. Amar, supra note 94, at 214.
106. Id. at 207.
107. Id. at 208.
108. Id. at 211.
109. Id. at 212.
110. Id. at 213
111. Id. at 219.
112. See id. at 207, 224-25.
113. Romer, 116 S. Ct. at 1627.
114. See supra notes 47-53 and accompanying text.
115. See supra notes 47-50 and accompanying text. I am not arguing that the asymmetry of Amendment 2 was irrelevant to the decision in Romer. Justice Kennedy clearly believed that Amendment 2 was "at once too narrow and too broad." Romer, 116 S. Ct at 1628. See supra note 56. The revised amendment cures the "narrowness" problem by denying protection not only to "homos and bis" but also to "heteros." Amar, supra note 94, at 207. However, the revision leaves uncorrected the excessive breadth problem, and this is probably sufficient to run afoul of the majority decision in Romer. For an example of a revised amendment that cures both the narrowness and the breadth problem, see supra Section II.C.1.
116. Amar, supra note 94, at 223-24 ("Justice-Kennedy's opinion ranges beyond text and form to ponder the exclusionary social meaning beneath the surface of Amendment 2."); see also id. at 207.
117. 163 U.S. 537 (1896).
118. Romer, 116 S. Ct. at 1623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). You do not need to be Fellini to understand the symbolic significance of Kennedy's rhetorical linkage of Romer and Plessy. See Amar, supra note 94, at 222-23.
119. Romer, 116 S. Ct. at 1627.
120. Trimble v. Gordon, 430 U.S. 762, 779 (1977) (Rehnquist, J., dissenting).
121. Romer, 116 S. Ct. at 1628.
122. Id.
123. Id.
124. Id. at 1629.
125. Amar, supra note 94, at 228.
126. Id. at 234.
127. Getting a Read on Romer v. Evans, supra note 12, at 8. Lockard, a vice president and legal counsel of MGM, also called the dissent "vicious" and "homophobic." Id.
128. Id.
129. Richard Rodriguez, The Revolution Occurs by the Christmas Tree, BALTIMORE SUN, May 24, 1996, at 23A.
130. For a discussion of the meaning of "homosexual fundamentalism," see supra notes 91-93 and accompanying text.
131. See supra notes 112-13 and accompanying text.
132. Romer, 116 S. Ct. at 1629 (Scalia, J., dissenting).
133. Justice Scalia noted that persons "who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities" and often amass substantial political power in those communities. Id. at 1634. This political power can be used to enact laws designed to produce "not merely a grudging social toleration, but full social acceptance, of homosexuality." Id. Scalia then placed Amendment 2 in its social context, explaining that by the time Colorado citizens were asked to vote on the initiative "their exposure to homosexuals' quest for social endorsement" had been informed by enactment of restrictive gay rights laws in Aspen, Boulder, and Denver. Id. These laws, noted Scalia, had the effect of "equating the moral disapproval of homosexual conduct with racial and religious-bigotry." Id.
134. I have written extensively elsewhere of the stigmatization of traditionalists by gay rights laws such as those passed in Denver, Aspen, and Boulder. See Duncan & Young, supra note 9, at 124-30. Viewed against this background, Amendment 2 was designed not to stigmatize and harm homosexuals, but rather to remove the stigma and associated harms inflicted on traditionalists by state and local gay rights laws. Id. at 129.
135. Larry W. Yackle, Parading Ourselves: Freedom of Speech at the Feast of St. Patrick, 73 B.U. L. REV. 791 (1993).
136. Id. at 792.
137. This phrase has become the rallying cry of the homosexual rights movement. See supra note 91 and accompanying text. Its social meaning is one of intolerance. It tells traditionalists that "homosexuality is good and legitimate, and if you have a problem with that you are going to have to change." Indeed, if we accept the major premise - a premise that declares the equal goodness of homosexuality, bisexuality, and heterosexuality - the logic is compelling. If homosexual unions are good and legitimate, institutions and persons who proclaim traditional sexual morality are "homophobic" and roughly equivalent to the Ku Klux Klan and similar racist organizations. If homosexuality is good, the Bible - as it is understood by traditional Jews, Catholics, and Protestants - is hate literature. If homosexuality is legitimate, Paul Monette was a prophet, not a religious bigot. See supra note 92 and accompanying text.
138. See supra text accompanying note 127.
139. Romer, 116 S. Ct. at 1633 (Scalia, J., dissenting).
140. Id.
141. Id. at 1634.
142. Id.
143. Id.
144. Id. at 1637.
145. Id.
146. Id.
147. See Brief of Amici Curiae States of Alabama, California, Idaho, Nebraska, South Carolina, South Dakota, and Virginia in Support of Petitioner, Romer v. Evans, 116 S. Ct. 1620 (1996) (No. 94-1039). I wrote the brief with Charles Cooper, who appeared as Counsel of Record.
148. See Duncan, supra note 66.
149. See supra note 130 and accompanying text.
150. Romer, 116 S. Ct. at 1634 (Scalia, J., dissenting). Andrew Koppelman agrees that gay rights laws "implicitly tell those whose religious beliefs sanction such discrimination that their religious beliefs are false and that they ought to change them." ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY 152 (1996)
151. See Duncan & Young, supra note 9, at 126.
152. See Smith v. Fair Employment & Hous. Comm., 51 Cal. Rptr. 2d 700 (1996).
153. Id. at 703.
154. Id. at 705-22.
155. Under the Religious Freedom Restoration Act, government may not "substantially burden a person's exercise of religion" without a compelling justification. 42 U.S.C. § 2000bb-1 (1994). Thus, the "substantial burden" standard is the threshold for protection of religious freedom under the Act.
156. Smith, 51 Cal. Rptr. 2d at 716. Interestingly, the court stated that the "proposition that a burden on religion is not substantial if one can avoid it" by going out of business is not "a generally applicable test for identifying substantial burdens." Id. Apparently, it is a special rule that applies in special cases such as when the court wishes to advance the "dignity interests" of unmarried cohabitants. Id.
157. Id. at 737 (Kennard, J., concurring and dissenting).
158. Id. at 716.
159. Isaiah's prophetic wisdom has never been more timely: "Woe to those who call evil good, and good evil; Who put darkness for light, and light for darkness; Who put bitter for sweet, and sweet for bitter!" Isaiah 5:20.