Members of the New York Gay Activists Alliance had just been dropped off at the old Firehouse on Wooster Street by the bus they’d chartered to and from Albany. It was after ten at night. They’d spent that Saturday, April 15, 1972, marching at a rally with eight hundred other gays, agitating yet again for a statewide gay rights law. The Firehouse telephone rang soon after Jim Owles opened the meeting house door. It was Ethan Geto, the semicloseted politico who’d later direct the failed campaign against Anita Bryant in Dade County. He was calling from the lobby of the New York Hilton Hotel. He was at a banquet of the Inner Circle, an organization of political writers who every year hosted an evening of lampoon entertainment to which they invited civic and business leaders. This night’s banquet was especially gala—the governor, the mayor, and two senators were there to help celebrate the Inner Circle’s fiftieth anniversary. Geto was sure that the Gay Activists Alliance would like to know that the sixteen hundred movers and shakers at the banquet had just been laughing uproariously at a lampoon that presented gay men as limp-wristed lady-wannabes screeching at the city council in falsetto to give them their civil rights.1
Most of the GAA members had already expended all their fight for the day in Albany; they just wanted to get home. But several of them found their second wind, grabbed handfuls of GAA leaflets that protested media treatment of gays, and hopped the Midtown train to the Hilton Hotel.
As the guests, now sipping their brandies, chortled at a new round of lampoons, the GAA men wandered from table to table passing out leaflets. It was obvious they weren’t getting the movers and shakers’ attention. Allen Roskoff, still carrying the megaphone he’d used that day in Albany, jumped up on the stage and boomed into it, “Listen! This dinner is now over. We will not tolerate homophobia in this city!”2
In seconds, the gays were bum-rushed by a tuxedoed pack. Its leader was president of the Uniformed Firefighters Association, Michael “Mickey” Maye—a forty-one-year-old, six-foot-two, 215-pound former Golden Gloves heavyweight boxing champ.3 Maye prided himself on his John Wayne directness. “What the fuck are you doing here, you fucking bastard! If you don’t get out, I’ll kill you!”4 he shouted as he lifted Roskoff by his shirt collar and dragged him out of the ballroom. Jim Owles ran after them, yelling, “You’re violating his civil rights! Get your hands off him!” Maye did—so he could smash Owles’s face and toss him onto the Hilton’s down escalator, headfirst.5 Fire battalion chief David McCormack, Maye’s beefy, bald-headed VP in the Uniformed Firefighters Association, wasn’t far behind;6 according to witnesses, he’d already jumped Morty Manford, socked him, dragged him to the down escalator, and now shoved him onto it, too. Mickey Maye, like a scrappy movie cowboy in a barroom brawl, wasn’t finished. He sprang onto the escalator, hopping over the prone and semiconscious Manford to bang some more on Owles. Then he turned to grind his heel repeatedly into the groin of twenty-one-year-old Manford as the escalator made its way to the ground floor.7 Jim Owles and Morty Manford were both hospitalized.8
Charles Manford had committed suicide in 1966 because it was too hard, he thought, to live his life as a homosexual. Morty, Charles’s younger brother, was an outstanding student at Columbia University, a handsome and personable young man with a brilliant future ahead of him. (He would become an assistant attorney general for the state of New York.) But in 1969, after he discovered that he, too, was gay, he tried to do the same thing his brother did: he went up to his room in his parents’ Flushing home and swallowed a bottleful of tranquilizers. His dentist father and his mother, an elementary school teacher, found him in time to save him. It wasn’t homosexuality that killed their first son and almost killed their second, Jeanne and Jules Manford told each other; it was society’s hostility toward homosexuals.
After Michael Maye’s brutish beating of Morty Manford, an outraged Jeanne Manford wrote a letter to the editor of the New York Post excoriating “the hoodlums who work for our city”—the policemen who were at the Hilton and did nothing while young gay men were being beaten. “I am proud of my homosexual son,” she declared, praising him for leading the fight against “bigots and sick people who take advantage of gays.”9
Had any parent ever before dared tell the world, “I am proud of my homosexual son”?
That June, Morty Manford asked his mother to walk alongside him in the Christopher Street Liberation Day March. They agreed they had to convey to spectators why she was there. On a piece of the same stock of poster paper that she handed out to her fourth-grade students for their art projects, Jeanne Manford wrote the message she’d carry in the gay pride parade. “PARENTS of Gays: UNITE in SUPPORT for Our CHILDREN,” her handwritten sign said.
Medium-tall Morty Manford, towering by a head above his diminutive and naturally shy mother, thought at first that the wild cheering of the crowds was for Dr. Benjamin Spock, the famous pediatrician and antiwar activist who was marching right behind them in a contingent of Homosexual Veterans Against the War.10 But—as Morty Manford learned from the many young gays and lesbians who ran up to his mother, showering her with hugs and tears and begging her to talk to their parents who’d disowned them or piled guilt and sadness on them because they were homosexual11—the cheering was for Jeanne Manford. Morty, moved to tears himself, told his mother as they marched, “You and dad have got to start an organization for parents of gays.”
The first meeting was held on March 11, 1973, at New York’s Metropolitan Duane Methodist Church on Thirteenth Street. Jeanne and Jules Manford told the twenty or so parents who showed up, all of them in anguish over the homosexuality of their son or daughter, “You need to understand: there’s nothing wrong with our homosexual children. They’re okay. It’s society that isn’t okay.”
A peevish father, who’d been dragged to the meeting by his despairing wife, protested, “Why should we brag about our son’s homosexuality? I don’t tell people the details of my sex life.”
Soft-spoken Jeanne Manford told him, “I loved my child as a child. I love him now. I want to see society give him a fair chance.” Cast beyond the pale, their gay children would have no fair chance, she said.12 It was up to parents of gays and lesbians to show family values by acknowledging their gay kids as family—“our children,” she and Jules Manford kept emphasizing the words. They needed to make public proclamations that “these are our children; we love our children as they are; and we fight for their right to equal treatment in jobs, housing, and privacy.”13 They needed to remind politicians that “there are twenty-five million homosexuals in this country and fifty million parents of homosexuals”14—that made a lot of votes.
Jeanne Manford’s ballot-box math was surely helpful to the gay and lesbian civil rights struggle. But crucial was her group’s transformation of the outcast homosexual into somebody’s child, a member of a family. It opened a whole new rhetoric.
One afternoon in 1974, a nervous Philip Starr sat his mother and father down in the living room of their middle-class Brentwood home. “I’m a homosexual. I can’t change, and I won’t,” he told them. In their Los Angeles suburban circles, “homosexual” still meant “sick.” Mr. and Mrs. Starr were visibly shaken. Philip had read about the Manfords, and he told his parents about their group. As it happened, Jeanne and Jules Manford were already traveling around the country to talk about Parents of Gays. When they came to Los Angeles, they inspired Adele Starr, a housewife, and Larry Starr, an accountant, to start a group like theirs. Within a few years, such groups were cropping up all over. They evolved from support groups, in which despairing parents offered one another solace, to groups in which they fought at the side of their gay and lesbian children in their struggle for civil rights.
The logo on the stationery of the national group, Parents and Friends of Lesbians and Gays (PFLAG), of which Adele Starr became president, announced, “I refuse to be a closet parent.”15 PFLAG grabbed headlines in 1979 when members descended en masse on Washington, DC, to participate in the March for Lesbian and Gay Rights. Even in small Midwestern cities such as Hutchinson, Kansas, newspaper readers were informed in bold letters that “Parents of Gays March,” and that they were urging all mothers and fathers of gays everywhere to “come out of the closet and support your gay children.”16 PFLAG rebuked antigay groups such as the Traditional Values Coalition, the Institute for American Values, and the Moral Majority. “You have no monopoly on morality,” Adele Starr, mama lion to all gays and lesbians, scolded the right-wingers. “The American way means respect for diversity and the right to life, liberty, and the pursuit of happiness.”17 By 1981, there were literally hundreds of PFLAG chapters.
That same year, James Dobson, head of Focus on the Family—an evangelical Christian group—started the Family Research Council, whose purpose was to lobby Capitol Hill in order to “advance a family-centered philosophy of public life.” James Dobson had been a child psychologist. He was catapulted to fame a few years earlier because two million readers bought his book Dare to Discipline, about the virtues of walloping disobedient kids, and he became a leading conservative spokesman. What Focus on the Family and the Family Research Council meant by “family” excluded precisely the family members championed by PFLAG.
President Reagan regularly invited Dobson to the White House to consult with the presidential staff on issues related to families. One of the biggest issues, as Dobson saw it, was fighting the “homosexual agenda” which, he said into the presidential ear, was a deadly threat to family. Dobson said the same thing on his Focus on the Family daily half-hour radio program, which was played on fifteen hundred stations and attracted five million listeners.18 He was more powerful in the evangelical Right than even Jerry Falwell or Pat Robertson. In 2004 the media dubbed Dobson “kingmaker” because through his influence on “pro-family values voters,” he guaranteed the reelection of George W. Bush by delivering Ohio and Florida to him.19
Emulators of James Dobson—all claiming a Christian-Right monopoly on family values—sprang up like poisonous mushrooms. Donald Wildmon, an ordained minister, started the National Federation for Decency in 1977, the same year Dobson founded Focus on the Family. But when Dobson’s family focus garnered so much attention, Wildmon rechristened his own group the American Family Association, through which he sponsored One Million Moms. The Moms (more like a few thousand) engaged in pro-family activities such as trying to pressure J. C. Penney to break its contract with lesbian TV celebrity Ellen DeGeneres, who’d been hired to show her wholesome face on Penney’s advertising. (The Moms failed.)
Psychologist Paul Cameron was another right-winger learning from Dobson. Cameron called the group he founded in 1982 the Institute for the Scientific Investigation of Sexuality; but he rechristened it the Family Research Institute. Though not a religious figure, Cameron (who was expelled from the American Psychological Association because of his dishonest interpretation of research on homosexuality) liked biblical stories of whippings, stonings, and worse. “The death penalty for homosexuals is not an unreasonable thing,” he proposed. “I am open to it.”20 Putting homosexuals to death would be one way to “restore a world where homosexuality is not taught and accepted but is discouraged and rejected at every level,” which was the chief mission of the Family Research Institute.21
• • •
A tragic event in 1983 involving a lesbian couple became a cause célèbre in the “family values” war. Sharon Kowalski was a champion athlete from her high school days through college: five foot eight inches tall, she ran track, threw discus, and played softball, basketball, volleyball, golf. She was a free spirit who rode a motorcycle and would pitch a tent anywhere that suited her. In 1975, at Minnesota’s St. Cloud State University, she fell in love with one of her health and physical education professors, Karen Thompson; the following year, Kowalski was an assistant coach in women’s track under Professor Thompson. When Thompson left St. Cloud to work on a PhD at Ohio State, Kowalski hopped on her motorcycle and went to visit her. They became lovers, and in 1979, after Thompson returned, Kowalski moved into her house in Clearwater, a little village near Saint Cloud in south-central Minnesota. The two women had a secret commitment ceremony, exchanged rings, and made each other beneficiaries on their insurance policies—the closest things to marriage in the days when same-sex couples couldn’t even form legal domestic partnerships.22
They’d always been closeted, and when Sharon Kowalski became a high school PE teacher, they felt even more urgency to pretend they were roommates: Saint Cloud, after all, wasn’t New York, LA, or San Francisco—and Sharon Kowalski also suspected that her Catholic parents, who still lived on the provincial Iron Range in northeastern Minnesota, wouldn’t understand. “Being gay on the Iron Range is a hanging offense,” Sharon always quipped. But in the fall of 1983, the lesbian singer Meg Christian came to Minneapolis, and Kowalski got tickets for herself and Thompson. She was tired of hiding. After the concert, she wanted to go to a lesbian bar, too.23
A week later, on the afternoon of November 13, 1983, Sharon Kowalski was bringing her four-year-old niece and seven-year-old nephew home from a Sunday outing when a drunk driver crashed his pickup truck into her car. The little girl was killed instantly; the boy was slightly banged up. Sharon Kowalski was badly injured. Karen Thompson rushed to the hospital. For two hours, Thompson tried to find out if Kowalski was dead or alive, but because they weren’t legally related, no one would tell her anything. Finally, a priest came by and said he’d find out. “They’re still working on her,” he reported. When Kowalski’s parents arrived hours later, Thompson learned that her lover was in a coma, had suffered a serious brain-stem injury, and would be a quadriplegic, if she survived.
As far as Kowalski’s parents knew, Karen Thompson was nothing but Sharon’s landlady and friend. In a state of grief and confusion, Thompson didn’t correct their illusion. She would have had to tell them what their daughter hadn’t wanted them to know. But she petitioned for legal guardianship of Sharon. She’d have her house modified with ramps for Kowalski’s wheelchair; she’d get a Hoyer lift, which would help move Kowalski from wheelchair to bed; she’d do anything else that was necessary, Thompson said. She’d been trained in physical and occupational therapy. She’d work with Sharon, she promised. She’d already been working with her at the facility where Sharon Kowalski was staying, and Sharon was now able to type simple sentences. One said, “Karen, make love to me.”24
Donald Kowalski, a rough-hewed man, a retired iron miner, also petitioned for guardianship. “No one can love Sharon like family,” he said.25 Thompson’s attorney advised her to let the father have guardianship. As long as she could see Sharon regularly, as she’d been doing, and work with her and take her for outings, there was no point in fighting him. Mr. Kowalski wouldn’t be able to understand why she’d want to be named his daughter’s guardian: in the petition Thompson had filed originally, she’d described herself only as “a friend and housemate of four years.” But she’d been so anguished about the tragedy that she’d gone to a psychologist. “You’ve got to tell the parents the truth about your relationship with Sharon,” was the psychologist’s simple advice.
Thompson was apprehensive, but in a carefully worded letter to Donald Kowalski, she did what the psychologist advised. When Donald Kowalski next saw Thompson at the hospital, he was red faced and shaking. “My daughter is not a lesbian!” he shrieked at her. Right there in Sharon’s room, her mother, Della Kowalski, lunged at Thompson, fingernails in claw position, and then pinioned her to the wall as Thompson struggled to hold her off. Sharon saw the skirmish, and a tear rolled down her cheek.
At a loss for how to deal with Sharon’s parents, Thompson contacted a Minneapolis PFLAG and begged them to intercede. “We understand your pain,” they wrote Mr. and Mrs. Kowalski on Thompson’s behalf. “Could we please sit down and talk to you?”
It was Donald Kowalski’s lawyer who responded to PFLAG’s request: “I merely ask you to mind your own business. Quit harassing my client, or we will take legal action.”26 Karen Thompson decided she had to challenge Sharon’s father for guardianship lest she never see Sharon again.
In court, Donald Kowalski told the trial judge that Thompson was a lesbian and a bad influence on his daughter. He’d fight Thompson “till they cover me up in the ground,” he said.27 He’d brought his son with him to the trial. The burly young man glared at Thompson, then couldn’t control himself. He leapt across chairs and grabbed her by the neck; he wouldn’t let go until he was pulled off.
In the judge’s decision, he opined that when Karen Thompson revealed to Sharon’s family that she was a lesbian, it created a “schism,” and it caused Sharon “emotional harm.” Donald Kowalski was Sharon’s family, the judge declared, and Karen Thompson was not. “This disabled girl needs the unconditional love of her family.” On July 23, 1985, the judge awarded guardianship to Donald Kowalski.28
Within forty-eight hours, Donald Kowalski took his daughter back to the Iron Range and put her in Leisure Hills Nursing Home in Hibbing, Minnesota, a small city about two hundred miles away from Saint Cloud. It was a place that warehoused the very elderly and those near death. At Leisure Hills there’d be no attempt to give Sharon Kowalski rehabilitation therapy. She was there to vegetate out of sight until she died. She spent most of her days curled into a fetal position. Thompson could visit, but she was told she must come at times the Kowalski family wouldn’t be there. She made the six-hour round-trip from Saint Cloud several times a week. That arrangement lasted for about a year, until Donald Kowalski got a doctor at the facility to write a letter to the court saying that Thompson was a lesbian and there was reason to fear she’d molest Sharon. Karen Thompson wasn’t allowed to see her for more than three years.29
During that time Thompson hired a team of lawyers. She was ready to fight, to sue: Sharon wasn’t getting appropriate care. She hadn’t been evaluated for years to determine whether she could benefit from rehabilitation treatment; she wasn’t allowed to see those she loved. Thompson had been so closeted before that she’d even feared to tell her colleagues how often she was going to Hibbing lest they suspect that she and Sharon Kowalski were more than just friends. But now she gave interviews to newspapers all over the country. She would break the case open. She traveled everywhere, speaking to lesbian and gay groups about what had happened, warning those in couples to get durable power of attorney for each other. She wrote a book, Why Can’t Sharon Kowalski Come Home?
Her tragedy struck a chord. Its dark drama stood for the harm suffered by legions of gay and lesbian couples because society refused to recognize their same-sex families. “Free Sharon Kowalski” bumper stickers began appearing on their cars; “Bring Sharon Home” sweatshirts were sold in women’s and gay bookstores. Lesbian and gay groups organized vigils in twenty-one cities on August 7, 1988—“Free Sharon Kowalski Day.”30 “Bring Sharon Home” committees raised money to help pay the $300,000 in legal fees Thompson was incurring.
By then, Donald Kowalski had had two heart attacks, and Della was suffering from severe depression. They were ready to relinquish guardianship of Sharon—but not to Karen Thompson. When Sharon was in high school, she’d had a track and discus coach, Karen Tomberlin, a married woman with four children who’d kept up with her athletically talented student. Though Tomberlin had her own family responsibilities and couldn’t promise to do more than visit Sharon Kowalski on occasion, she had the great virtue of being heterosexual. Donald asked her to request to be appointed as Sharon’s guardian. Tomberlin—who was as averse to Thompson’s lesbian “influence” over Sharon as was her family—agreed to do it.
Karen Thompson complained again in court: Sharon Kowalski hadn’t been evaluated in five years and Minnesota law required evaluation of someone in Sharon’s position every six to twelve months. She petitioned to order a thorough evaluation, and it was granted. Sharon was moved to Miller-Dwan Medical Center in Duluth, Minnesota, where a medical team found that she was capable of understanding and communicating. They also found that she wasn’t getting the rehabilitation care from which she could profit; and they recommended she be allowed to see visitors of her choosing, especially Karen Thompson: for Sharon’s mental health, the evaluators concluded, she should even be permitted to go on outings with Karen Thompson.
When Thompson brought her guardianship request to court again, sixteen medical experts who’d worked with Sharon Kowalski—occupational therapists, speech therapists, rehabilitation medicine specialists—were called to testify. They agreed that while she had permanent short-term memory loss, she was competent to communicate her desires and preferences. “When Karen comes into the room, Sharon is a different person.” “She glows when she’s with Karen.” “Karen is Sharon’s world, and Sharon chooses not to interact unless Karen is with her.” “Sharon wants to live with the woman whom she chose to be her lesbian partner,” they testified. The court-appointed social worker agreed.
But Sharon Kowalski’s sister Debra, who sat through all the testimony looking grim, told the judge that the whole Kowalski family hated Karen Thompson, who, they claimed, was using Sharon for her own lesbian “political agenda.” The family would never visit Sharon if they had to step foot in Karen Thompson’s home.31
Robert Campbell, the district court judge hearing the case, concluded in April 1991 that it was true that Thompson had long “demonstrated commitment and devotion to the welfare of Sharon Kowalski.” And it was true that she knew Sharon’s “medical, material and social needs.” Nevertheless, Judge Campbell declared in a section of his opinion that he labeled “Outing,” Thompson had acted contrary to Sharon’s best interest by making public their lesbian relationship; she’d “disclosed Sharon’s sexual orientation to Sharon’s parents and the world, without Sharon’s consent.”32 For those reasons, he ordered that Sharon Kowalski remain institutionalized, under the guardianship of Tomberlin—who announced she would return Sharon to the Leisure Hills Nursing Home because she was sure Sharon “would want to be back up in the Iron Range, where she spent her childhood.”33
Thompson, tireless and unrelenting, brought her case to the Minnesota Court of Appeals. There her lawyers argued eloquently that it was “astonishing” that a judge would issue an order that would “have the effect of limiting Sharon Kowalski’s contact with Thompson and the love Karen feels for her.” The lawyers demanded to know, “In what moral framework, in what system of justice, could such an order conceivably be in Sharon’s best interest?”34 The obvious answer was, only in a “moral framework” that narrowly defines loving family in the service of bigotry.
The judges of the Minnesota Court of Appeals deemed such a “moral framework” unjust. They concurred with Karen Thompson’s lawyers. Judge Jack Davies, writing the opinion for the court of appeals on December 17, 1991, declared that the lower court judge had “abused his discretion” by appointing Karen Tomberlin guardian. Tomberlin hadn’t visited Sharon Kowalski more than three or four times a year since the accident. Judge Campbell hadn’t even demanded proof of Tomberlin’s qualifications as a guardian. Even more serious, sixteen medical experts had testified that Sharon Kowalski wanted to live with Karen Thompson, and that Thompson had the skills, resources, and emotional commitment to help her; and not one medical expert was brought in by the Kowalski family to say the contrary. But most serious of all, Judge Davies wrote, was that “Thompson and Sharon are a family of affinity, which ought to be accorded respect.”35 The court of appeals reversed the lower court’s ruling, and Sharon Kowalski came home. It was a landmark decision: one of the first times that a same-sex couple had been called “a family” in a court of law.
• • •
Throughout the 1980s, gay and lesbian families tried mostly in vain to get the law to recognize them as families. In San Francisco they had a nibble of success in 1982 when Supervisor Harry Britt, Harvey Milk’s chosen successor, introduced a bill to the board of supervisors that would give health insurance benefits to the live-in partners of city employees. It passed—only to be vetoed by Mayor George Moscone’s successor, Dianne Feinstein, who caved to pressure from San Francisco’s Roman Catholic churches. “To reduce the sacred covenant of marriage and family by analogy to a ‘domestic partnership’ is offensive to reasonable persons and injurious to our legal, cultural, moral and societal heritage,” Archbishop John Quinn advised Mayor Feinstein.36
That same year, a San Francisco gay man who was a railroad clerk for Southern Pacific Transportation lost his partner of eleven years to suicide. The clerk’s union, AFL-CIO, had negotiated that after a death in the family, an employee was entitled to a three-day paid bereavement leave. But because the deceased wasn’t related to the clerk by marriage, blood, or adoption, his leave request was denied. The union refused to fight for him: bereavement leave was intended for real family members, the union rep said. The clerk sued, but the judge found for Southern Pacific Transportation. The California Court of Appeals agreed: the relationship couldn’t be verified—there was no legal record of it—and so the clerk had no claim.37
A few domestic-partner laws did eventually get passed. The hippie-dominated Berkeley City Council was first, in December 1984. That same year, West Hollywood—fondly dubbed “Boys’ Town” by its predominantly gay male population—was incorporated as a city; and in early 1985 one of the first official acts of the West Hollywood City Council, headed by lesbian mayor Valerie Terrigno, was to vote in domestic-partnership benefits for same-sex couples. These were modest victories—hospital and prison visitation rights, health insurance for the partners of city employees.38 But they set a precedent. In 1999 a domestic-partnership registry was established for the entire state of California (which led hostile opponents to dub the state “land of fruits and nuts”).39 In the years that followed, a handful of other states established domestic-partner registries or civil unions. But most lesbian and gay struggles for recognition as families took place case by case.
One important victory came at the end of the eighties: Miguel Braschi, a Puerto Rican, had come to the mainland on an Ohio State University tennis scholarship. In 1975 he met Leslie Blanchard. The two men became lovers; and Braschi gave up his scholarship, moved into Blanchard’s rent-controlled apartment on Fifty-Fourth Street in Manhattan,40 and worked as the manager of Blanchard’s exclusive hair salon on East Sixty-Second Street. (Their clientele included Meryl Streep, Mary Tyler Moore, Robert De Niro, and Donald Sutherland.) Leslie Blanchard also owned Yellow Iris Farm, a farmhouse in northern New Jersey that he’d restored so elegantly that it was featured in Architectural Digest. Blanchard and Braschi used the place as a weekend retreat.41 In 1977 the two men exchanged “Cartier love bracelets”—it was to them like exchanging wedding rings.42 They paid their bills from a joint checking account and had joint credit cards. They attended each other’s family functions, and their families knew and accepted them as a couple. Blanchard’s young niece even called Braschi “uncle.”
But in 1986 Blanchard died of AIDS. His was the only name on the lease. Two months after Blanchard’s death, the landlord sent Miguel Braschi an eviction letter, telling him he had one month to pack up and vacate the premises. Miguel Braschi said that he and Blanchard had been a family, and under New York’s rent-control laws a member of the leasee’s family couldn’t be evicted. He sued to stay. His motive wasn’t financial—he was the primary heir to Blanchard’s $5 million estate. But he’d agreed to serve as a test case.
By now the American Civil Liberties Union had made a 180-degree turn from the days when it declared that the government was justified in firing homosexuals because they were a threat to the nation’s security. William Rubenstein, a brilliant young lawyer fresh out of Harvard Law School, was working for the ACLU’s Lesbian and Gay Rights Project, specializing in fighting for the rights of people affected by the AIDS epidemic. Rubenstein was assigned the Braschi case. A lower court had already decreed that the landlord had a right to evict Miguel Braschi because “family” meant only people related by “blood, marriage, or adoption.”43 William Rubenstein took the case to the New York Court of Appeals, where he argued that “family” begged for a new definition because over the last decades families had become remarkably diverse. The Ozzie and Harriet family was rare, a minority.
The appeals court agreed with Rubenstein. By a vote of 4 to 2, the judges overturned the decision of the lower court. The majority opinion, written by Judge Vito Titone, established new criteria—along the lines Rubenstein suggested—for determining what a family is. The exclusivity and longevity of a relationship were central, as was the level of emotional and financial commitment. How a couple conducted their everyday lives and held themselves out to society were also relevant in the court’s definition; and so was the reliance the couple placed on each other for daily family services.44 In the court’s definition of family, there was not one reference to biological sex or a marriage license. “New York Court Defines Family to Include Homosexual Couples,” the stunned editors of the New York Times announced when the case was settled in 1989.45
Gary Bauer, who’d been undersecretary of education in the Reagan administration and had become president of James Dobson’s Family Research Council in 1988, blasted the 1989 Braschi decision. “The ruling by the Court of Appeals is a dangerous landmark. The fight is about whether or not the heterosexual family will continue to be the central and favored form of family life, or whether we are going to use such a broad definition of family that it will no longer have any significance.”46 He was right: the court’s decision on the Braschi case did serve as a “landmark” to help redefine “family” under the law.47
Mounting gay and lesbian legal victories triggered mounting reactionary frenzy and political opportunism, too. Far-right leaders waged all-out war for the sake of “family” (and fund-raising). Beverly LaHaye, wife of evangelical minister and author of the Left Behind books, Timothy LaHaye, had started Concerned Women for America in 1979 to stop women’s rights and abortion supporters from “threatening the family.” But the feminine mystique and abortion weren’t great fund-raising issues: most Americans were pro–women’s rights and pro-choice. Concerned Women for America enlarged its sights. “The homosexuals’ agenda is destructive to the family,” Beverly LaHaye wrote in a 1993 fund-raising letter. Homosexuals “want to have the same marital rights as you and your spouse,” she told potential donors. “They want to be able to adopt any child. They want young children to be taught there’s nothing wrong with homosexual behavior.”48
In the name of organizations such as the American Family Political Committee, much of the money that right-wingers raised in the 1990s went to fight gays and lesbians at the ballot box: in Idaho, Washington, California, Oregon, Michigan, Arizona, Florida, Ohio. The language of those campaigns reprised Save Our Children in the 1970s: homosexuality was “wrong, unnatural, and perverse”; homosexuals “condoned adult males pursuing sexual relations with young boys”; the diabolical gay agenda was aimed at obliterating the “traditional family structure.”49 The mother of all such antigay battles was waged by Colorado for Family Values. But it ended in a US Supreme Court decision that for gays and lesbians was comparable to Brown v. Board of Education for African Americans.
Sixty-three-year-old Wilfred Perkins—Will, he liked to be called—was the owner of Perkins Motor Company, a new-and-used-car dealership, which he’d inherited from his father in 1959. He was a born-again, as was at least a third of Colorado Springs’s population of 350,000. The city was home to the army’s Fort Carson, the US Air Force Academy, and eighty different evangelical groups, including Focus on the Family and the Family Research Institute. “The Vatican of the Evangelicals,” Colorado Springs was called.50
Will Perkins was famous in Colorado Springs for his amiable and sincere-sounding TV ads through which he hawked his cars. His two passions were selling cars and proselytizing for his religion. At holiday times, the avuncular Perkins brought both together, injecting Christian family messages into his Chrysler commercials.51 “He sells Jesus like he sells cars,” one friend said of him.52 So when Will Perkins got word that the Colorado Springs Human Relations Committee was trying to convince the city council to pass a gay rights ordinance like the ones that had been passed in Boulder, Aspen, and Denver,53 he feared for the future of the traditional Christian family.
Perkins hurried to the city council’s public hearings to protest. The council chamber was so mobbed that he couldn’t get in. But a few days later, he was able to get into a gathering at a church meeting hall—born-agains like him who were furious about the proposal to bring gay rights to Colorado Springs. The group had been called together by Kevin Tebedo, son of State Senator MaryAnne Tebedo, who’d recently outraged African Americans by proclaiming on TV that their culture “encouraged sexual promiscuity for girls.”54 Young Tebedo’s own outrageous statements to the media were all about homosexuality: “Don’t even put it in my face! Don’t even make me think about it!” Kevin Tebedo roared with junior high school gusto.55
Tebedo’s group would name themselves Colorado for Family Values, those in the packed church meeting hall decided in a flurry of righteous energy. They’d fight the local proposal for a gay rights ordinance—but that’s not all they’d do. They’d also work to get rid of the gay ordinances in other Colorado cities. They’d overturn an executive order signed by Democratic governor Roy Romer that said gays couldn’t be discriminated against in jobs that were funded by the state. They’d make sure to nip in the bud a Colorado Civil Rights Commission recommendation that a statewide gay rights law be passed—and they’d end all future bids for gay rights, too. To do all that, they’d get the state of Colorado to amend its constitution. MaryAnne Tebedo advised them how it could be done through a voter initiative.56
Because of his TV ads, Will Perkins was the best-known face in the room. He believed so much in what Colorado for Family Values would be doing that he was willing to commit a chunk of his car dealership profits to the fight, too. Perkins was elected hands down as executive board chairman.57 The group members agreed they’d found a perfect spokesman, “an excellent salesman, in the best sense of the word,” with rhetorical skills like Ronald Reagan’s, they said.58 His critics said that “his primary skill was to make hatred palatable to the general public.”59 He could sound imminently reasonable, even temperate and civil, when he talked about how homosexuals were destroying Colorado families.
Will Perkins’s job was clear: he needed to sell voters a law that would forever prevent Colorado’s gays and lesbians from claiming civil rights. He liked to say in a well-modulated voice that “people don’t have a bad feeling toward the homosexual community,” but the problem was that homosexuals—who are richer and have more education and better jobs than the average Joe (he produced statistics to prove it)—already have equal rights. It was “special rights” that homosexuals were demanding, and that was unfair to everyone else.60 “No special rights!” became the rallying cry of the campaign.
But Perkins also got at the voters more viscerally. He worked to foment as much “bad feeling toward the homosexual community” as he could. He warned that gay rights laws could qualify homosexuals for affirmative action quotas and employers would be forced to hire them. He repeatedly declared that homosexuals were promiscuous and obsessed with sex. He somehow got hold of the radical resolutions that had been hotly rejected at the 1972 Chicago meeting of the National Coalition of Gay Organizations,61 and he presented them as what the gay rights movement was all about: what homosexuals really wanted, he said, was to repeal all age-of-consent laws and all laws restricting the sex or number of persons entering into a marriage unit. “The drive for homosexual rights undermines the family,” Perkins reiterated incessantly to op-ed readers, reporters, radio and TV hosts, and church groups up and down the state.62
Colorado for Family Values needed only 49,279 petition signatures to get an initiative on the ballot. Over 85,500 signatures were collected. As chairman of the executive board, Will Perkins was taking no chances. He and Kevin Tebedo drove to Denver’s Capitol Hill in a Loomis armored truck with the seventeen big boxes of signed petitions locked in bulletproof steel; he hand delivered them to the secretary of state. A showman always, Perkins alerted reporters of his arrival time. When they questioned him about the over-the-top histrionics of his delivering the petitions in an armored car, Perkins responded, “We consider these documents to be among the most important signed pieces of paper in the entire United States.”63
Amendment 2, as the Colorado for Family Values initiative came to be called, would change the state constitution to prohibit Colorado and all its municipalities and school districts—now and in the future, into perpetuity—from adopting any laws or regulations permitting the right to claim discrimination on the basis of “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” In all of Colorado, only gays, lesbians, and bisexuals, singled out in a constitutional amendment, would never have the right to complain to their government of grievances and demand rectification. Amendment 2 would create a class of untouchables.
Will Perkins’s sales tactics were propped up by propaganda literature from Colorado for Family Values. A headline of one CFV leaflet announced with ostensible fairness, “Equal Rights—Not Special Rights.” The same leaflet told parents to imagine that their child was a student at CU–Boulder (which had gay rights protections), and his roommate was living an objectionable “gay lifestyle” right under his nose. “What can you or your child do about it?” the leaflet asked. “According to the ‘law’ in Boulder, nothing!”64 Another leaflet with an “Equal Rights—Not Special Rights” headline propagated panic by attributing to the North American Man/Boy Love Association (NAMBLA) the motto, “Sex by eight, or it’s too late” and citing reports that 73 percent of homosexuals had had sex with minors. “Vote yes on Amendment 2 for the future of our children,” the leaflet beseeched hysterically.65 CFV placed eight hundred thousand of such leaflets on voters’ doorsteps.66
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Eva McGeehan, a Colorado Springs resident whose son Patrick was gay, had founded a PFLAG chapter a couple of years earlier, right there in the heart of “the Vatican of the Evangelicals.” Because of Amendment 2, her little PFLAG chapter grew practically overnight from twelve to one hundred members. McGeehan told the media that Amendment 2 was the best thing that ever happened to the gay and lesbian movement in her town: the Right had shown its nasty hand, and parents of gays and lesbians saw clearly what those they loved were up against.67 They wouldn’t be closet parents. Amendment 2 also brought many more gay and lesbian Coloradans out of the closet. There’d been activist gay groups in Colorado since the Gay Coalition of Denver was formed in 1972 to fight police harassment.68 Now, in response to an even greater threat, new groups cropped up ready to fight.
Months before the November 3 election, two young lawyers, Mary Celeste, a lesbian (who’d eventually become the first openly gay judge in Colorado), and Pat Steadman, a gay man (who’d become a state senator and author of Colorado’s civil unions bill), started the Colorado Legal Initiatives Project (CLIP)—to figure out what to do just in case the vote didn’t turn out well. They agreed they needed to get a seasoned lawyer on board, the most high-profile Colorado lawyer possible. Among the members of CLIP was Wayne Buchanan, a policy wonk for Governor Romer. He knew just the lawyer. His parents, PFLAG members and long active in supporting gay rights, were neighbors of Jean Dubofsky, who’d been a justice on the Colorado Supreme Court.
Soon after Will Perkins submitted the 85,500 petition signatures to the Colorado secretary of state, Jim and Jan Buchanan paid their neighbor a visit. Jean Dubofsky was a Harvard Law graduate who’d fought for fair housing for blacks and legal services for migrant farm workers. In 1979, when liberal governor Richard Lamm appointed her to the Colorado Supreme Court, she’d been Colorado’s deputy attorney general. Thirty-seven years old, she became the court’s youngest judge; its first female, too, though she left in 1987 and opened her own law practice because it gave her flextime to spend with her lawyer husband and their two young sons. There was no one as well acquainted with Colorado’s legal system and as reliably progressive on all social issues as Jean Dubofsky. The Buchanans asked their neighbor whether she’d be willing to lead the legal battle against Amendment 2, if voters should pass it.69 “Sure,” Dubofsky blithely said, but she was confident Amendment 2 would fizzle in liberal Colorado. Early polls confirmed her certainty: it was trailing.
“Even so, we’d better build our case now, because if we’re not ready it’ll certainly pass,” the superstitious Pat Steadman said.70 Dubofsky and the young lawyers in Colorado Legal Initiatives Project met all that summer to work out legal theories and line up gays and lesbians who’d act as plaintiffs, just in case. Jean Dubofsky’s idea was that if Amendment 2 passed in November, CLIP would file a preliminary injunction right away, to keep it from going into effect in January when the secretary of state would be signing it into law: if it did become law, Dubofsky told CLIP, it would take a mammoth struggle to revoke it.
• • •
On November 3, 1992, Coloradans went to the polls. They gave Democratic presidential candidate Bill Clinton all eight of the state’s electoral votes; 53.4 percent of them also ticked yes on Amendment 2, agreeing to deny gays and lesbians any and all legal protection by the government of their state, forever.
While the gay community in Colorado despaired, gay communities outside of Colorado had reason to despair, too. Colorado for Family Values’ easy victory reenergized the religious right all over the country. Copycat campaigns were immediately under way. “Our campaign stands as a guidepost for others,” cofounder of Colorado for Family Values, Kevin Tebedo, gloated about the influence of his group’s success. CFV’s media star, Will Perkins—now seen as the religious right’s Anita Bryant of the nineties—promised that Colorado for Family Values would happily “share our experience with people who need help getting an organization going.”71
• • •
When the devastating results on the Amendment 2 vote were in, Governor Roy Romer, who’d been cochair of the group that led the fight against the amendment, met with gays and lesbians at a Denver Convention Center rally. They were all stunned. How had pollsters been so wrong? “It is not you who are gay and lesbian who have lost tonight,” Governor Romer told the crowd. “It is all of Colorado who has lost tonight.”72 He was genuinely affected by the loss. But, ironically, the battle to overturn Amendment 2 would carry his name, on the wrong side. Evans v. Romer the court fight in Colorado would be called.73
Amendment 2 violates federal Amendment 14’s equal protection clause and is unconstitutional, Jean Dubofsky complained to the district court when she filed for an immediate injunction. Judge Jeffrey Bayless, to whom the case was assigned, had been a tough prosecutor with the district attorney’s office until he was appointed as a Denver District Court judge. Forty-seven years old, pink faced and bland looking, he had a reputation as a political conservative. On January 11, 1993, Judge Bayless began hearings on the amendment. The setting was his polished-oak courtroom that was decorated with gray marble pillars and two big beaux-arts chandeliers. It was so perfect a Hollywood image of a courtroom that it had been rented by Viacom in the mid-1980s to shoot episodes of the new Perry Mason series, though the chandeliers gave so little light that Bayless always complained he had to squint to see the witnesses.74
Will Perkins, looking dapper and affable, was the first to testify in support of Amendment 2. He knew better than to cite bogus statistics about homosexual child molesters in court. “How you have sex isn’t an appropriate criterion for civil rights,” he told Judge Bayless with sweet reasonability.75
Jean Dubofsky argued that Amendment 2 had no rational basis and was motivated by impermissible bias. The plaintiffs she and her team76 called to testify were a contrast to Perkins’s Reaganesque calm. They couldn’t hold back emotions. Paul Brown, a gay man who worked in a Colorado government job, told about one of his coworkers painting “Paul Is A Fag” in large letters on the wall facing the employees’ parking lot. He’d been so harassed at work that he’d considered suicide. “There has to be a clear message from someone in authority that this is not okay,” he told Judge Bayless. Angela Romero, a forty-two-year-old police officer, wept as she told the judge about how she’d finally gotten to fulfill her lifelong dream of serving as a school resource officer, a job in which she could be a role model for Latino children; but after someone reported to her supervisor that she’d been seen in a lesbian bookstore, she was transferred to the domestic violence detail. Now she worried that some of her hostile fellow officers might jeopardize her life—she couldn’t depend on them to give her backup.
The solicitor general of Colorado argued on behalf of the state that Amendment 2 was meant mostly to send a message to gays saying “Enough!” It wouldn’t, and wasn’t supposed to, have any “real impact.” But dark as the courtroom was, Judge Bayless saw, as he said, that Amendment 2 had the potential to “cause real, immediate, and irreparable damage.” He issued the injunction Jean Dubofsky requested.77
Attorney General Gale Norton appealed to the Colorado State Supreme Court to get the injunction lifted. (The issue was so heated that the proceedings were broadcast live on Court TV.)78 That august body backed Judge Bayless: Amendment 2 was dubious, the judges said. “Fundamental rights may not be submitted to a vote,” one judge argued. Amendment 2 “fenced out” homosexuals from the political process; it singled out one group that could not get legal protection,” another judge argued. “That was contrary to the notion of “We the People,” another said in an eloquent recognition that gays and lesbians were indeed part of the American family. The Colorado Supreme Court agreed that the state simply hadn’t demonstrated a “compelling interest”: it would have to show why such an amendment was needed before Amendment 2 could go into effect. The court upheld Judge Bayless’s injunction.79 Evans v. Romer was sent back to him for trial.
Gale Norton was thirty-nine years old, a conservative who hailed from Wichita, Kansas, though she’d lived in Colorado since her undergraduate days at the University of Denver. She’d been elected three years earlier, the youngest person and the first woman to be made the Colorado attorney general.80 It was now her duty to answer the Colorado Supreme Court’s claim that the state had no “compelling interest” in Amendment 2.
Amendment 2 would support the family and the well-being of children and keep at bay “militant gay aggression”—that was the “compelling interest” Attorney General Norton provided on behalf of the state.
It did not fly with Judge Bayless. “If one wished to promote family values,” he declared, “action would be taken that is pro-family and not anti some other group.” And to Norton’s argument that Amendment 2 served “the physical and psychological well-being of children,” Bayless responded that all the evidence suggested that heterosexuals are more likely than homosexuals to be pedophiles. The judge ruled Amendment 2 to be unconstitutional.81
Attorney General Norton appealed the case again to the Colorado Supreme Court—who again, by a vote of 6 to 1, showed little sympathy. Chief Justice Luis Rovira wrote the majority opinion: “The measure denies homosexuals equal participation in the political process by saying they can have no redress if they feel discriminated against.” It was the first decision by the highest court in any state to rule that the denial of rights to homosexuals was unconstitutional.82 But the best was yet to come.
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Attorney General Gale Norton and her solicitor general, Timothy Tymkovich—as reliably conservative (antiabortion, anti–gun control, pro–“religious liberty”) as his boss—appealed to the Supreme Court of the United States. Though Roy Romer had been opposed from the start to Amendment 2, as governor he was obliged to support the state’s laws. But he was surely chagrined when his name led in the Supreme Court appeal: Romer v. Evans.83
If the US Supreme Court refused to hear Romer v. Evans, the state court’s edict would stand, and Amendment 2 would be dead. But the justices didn’t refuse. They put it on the SCOTUS calendar for October 10, 1995. Will Perkins and Colorado for Family Values were jubilant: SCOTUS had apparently found something troubling in the state court’s decisions. Jean Dubofsky’s heart sank.84
Whatever big guns could be gotten out needed to be gotten out now. Matthew Coles of ACLU’s Lesbian and Gay Rights Project in New York and Clyde Wadsworth, an attorney with Lambda Legal Defense in California, came on board to assist in preparation of the case; New York Lambda Legal Defense also sent Suzanne Goldberg, a young staff lawyer two years out of Harvard Law, to line up amicus curiae briefs from liberal constitutional law scholars.85 The briefs came pouring in. Goldberg’s Harvard professor, Laurence Tribe, who’d represented Michael Hardwick against Georgia’s sodomy law in the Supreme Court, wrote “There’s never been a law as bad as Amendment 2.”86
It had been agreed that Jean Dubofsky would take the lead in representing the plaintiffs, all the way to the Supreme Court if necessary. Hoping for hints about arguing the case before the Supreme Court, Dubofsky contacted the best appellate lawyer in Washington, DC. It was John Roberts, who a decade later would be made the chief justice of SCOTUS. “Sure, let’s have lunch,” he affably told her. She flew to DC. John Roberts offered a major piece of advice: “You just have to be able to count to five.”87
But the makeup of the court gave Dubofsky reason to worry. It seemed impossible to count to five. William Rehnquist and Sandra Day O’Connor, two of the judges who’d voted in 1986 in favor of upholding Georgia’s sodomy law in Bowers v. Hardwick, were still on the court. Clarence Thomas, a George H. W. Bush appointee, could always be relied on to silently cast his vote way off to the Right; as could Reagan appointee Antonin Scalia (though never silently). Anthony Kennedy, another Reagan appointee, seemed not much better than those four, at least with regard to homosexuality. When he’d been on the Ninth Circuit Court of Appeals, he held that the navy’s policy of discharging homosexuals didn’t violate any constitutional provision; he refused to issue an order requiring reinstatement and back pay for government employees who lost their jobs because they were homosexual; he upheld the Civil Service Commission’s position that someone could be fired for “open and public flaunting or advocacy of homosexual conduct”—Anthony Kennedy’s antihomosexual judicial decisions seemed endless. News of his apparent hostility to gays and lesbians spread during his 1987 Senate confirmation hearings when a detailed list of Kennedy’s hurtful decisions was published in the popular gay newspaper New York Native.88
Who was reliable on the court when it came to gay rights? David Souter had been moving to the Left since George H. W. Bush appointed him to the Supreme Court in 1990, but he’d had a suspicious past. In 1987, when he was a member of the New Hampshire Supreme Court, Souter voted with the majority (6 to 1) to advise the New Hampshire legislators that they wouldn’t be violating the state constitution if they stopped gays and lesbians from adopting or fostering children. “The provision of appropriate role models is a legitimate government purpose,” Souter and the other justices affirmed—in other words, homosexuals would be bad parents because they’d model homosexuality and turn their kids gay.89 (The ban against gays and lesbians adopting or fostering wasn’t lifted in New Hampshire until 1999.)
Only Stephen Breyer, Ruth Bader Ginsburg, and John Paul Stevens could be counted on to uphold the overturning of Amendment 2. But even if David Souter continued his veer left, that would only give four votes. And four was no better than zero in Supreme Court decisions.
• • •
October 10, 1995: Antonin Scalia was predictably on the attack. The Colorado for Family Values’s rationale in initiating Amendment 2 was just fine, Scalia thought: homosexuals were asking for “special rights,” and they shouldn’t have them any more than “bigamists or those with poorly combed hair.” He reminded the court that the justices had said in Bowers v. Hardwick that states were free to make homosexual behavior a crime. That being the case, he asked Jean Dubofsky in a tone combative, smug, and witty all at once, wasn’t it a matter of simple logic that now the states could take the milder step of deciding not to encourage homosexuals by offering them protection against discrimination?90
Scalia was undeniably right—it was simple logic: If homosexuality was criminal, why would the court forbid a law that discouraged it? But what Scalia’s logical equation didn’t take into account was that in the years since the court had judged Bowers, gays and lesbians of all stripes had come out of the closet—which had forced a lot of Americans to discover that “the homosexual” wasn’t a grotesque stranger lurking in the shadows but someone who’d been near and dear to them all along. The cultural climate had begun to undergo a sea change.
Every one of the four hundred seats was occupied—lawyers, journalists, gays and lesbians and their friends. Those rooting on their side breathed a little easier almost right away. Solicitor General Timothy Tymkovich, a tall man with a twitching brush mustache that gave him a Neville Chamberlain look,91 had barely begun his oral arguments when Justice Kennedy jumped in. “I’ve never seen a case like this,” Kennedy remarked disapprovingly, echoing almost exactly Laurence Tribe’s sentiment in his amicus curiae brief. Jean Dubofsky couldn’t believe what she was hearing. Anthony Kennedy had just revealed his feelings about Amendment 2.92 A few minutes later, Justice Ginsburg jumped in to second Kennedy’s disapproval: “I would like to know whether in all of US history there has been any legislation like this that earmarks a group and says, ‘You will not be able to appeal to your state legislature to improve your status’?”
“So, a public library could refuse to allow books to be borrowed by homosexuals, and there would be no relief from that?” Sandra Day O’Connor wanted to know (to the incredulous relief of all who were there to oppose Amendment 2). Tymkovich fumbled and couldn’t make sense. “Would a homosexual have a right to be served in a restaurant?” Justice Stevens wanted to know.
The sea change had clearly affected judicial thought.
“Think of a public hospital that has a kidney machine,” Justice Ginsburg jumped in again, sharp sword at the ready. “And the hospital says, ‘We have to limit this. We’re not going to have any gay or lesbian use this facility’—under the amendment that’s okay, right?”
“We don’t know,” the ruffled Tymkovich had to admit.93
The Supreme Court’s decision came down on May 20, 1996. It was a breathtaking 6–3. Predictably, Scalia, Rehnquist, and Thomas voted to uphold Amendment 2. Kennedy and O’Connor both voted with the four more liberal judges.
Gary Bauer of the Family Research Council dubbed May 20 “a very dark day for the liberty rights of the American people.”94 Will Perkins called a press conference on behalf of Colorado for Family Values. Gays bent on forcing a deviant lifestyle down the throats of the American family had succeeded in making the government “their pet bully,” Perkins announced. But, he threatened, “there’ll soon be a drive to impeach the justices who voted against Amendment 2!” It was an idle threat.95
Justice Anthony Kennedy, writing the majority opinion on Romer v. Evans, declared that the amendment was inexplicable of anything but animosity to a class of people. It was both too narrow and too broad. It identified a person by a single trait, and then it denied that person protection across the board. “Amendment 2 classifies homosexuals not to further a proper legislative end, but to make them unequal to everyone else. This Colorado cannot do. A state cannot deem a class of persons a stranger to its laws,” Kennedy resoundingly concluded.
Such pronouncements from the highest court in the land would have been the stuff of opium dreams in the fifties and sixties, when tens of thousands of people were fired from jobs, kicked out of the military, committed to state mental hospitals, and otherwise made miserable precisely because the state identified them by a single trait and then denied them protection. Hadn’t the Supreme Court condoned just such state actions even in the 1980s, when it decreed in Bowers v. Hardwick that states had all the right they wanted to criminalize homosexual behavior? But in the decade between Bowers and Romer, gays and lesbians, with a little help from their friends, had been transforming the rhetoric about who they were—rescuing their image from that of unsavory criminal to another member of the family, who must be treated as part of the American family, too. Maybe the Right wouldn’t countenance the transformation, but as the Romer v. Evans decision showed, reasonable people did.