This edition of Bill of Rights in Action focuses on new claims for equal protection under the law. The first article traces how the U.S. military has opened the way for excluded groups to gain equal protection under the law in American society and the new claims women and homosexuals are making on it. The second article looks at the issue of mainstreaming special-needs students. The third article focuses on the debate in Romer v. Evans, the 1996 Supreme Court case decision on the right of gay people to equal protection.

U.S. History: Equal Opportunity in the Military
U.S. Government: Including the Disabled Student
U.S. Government: Should Homosexuals Have the Right to Laws Protecting Them From Discrimination?

This issue of the Bill of Rights in Action is made possible by a generous grant from the W.M. Keck Foundation.

EQUAL OPPORTUNITY IN THE MILITARY

Colin Powell, the retired chairman of the Joints Chiefs of Staff, is not only an African-American success story, but also a success story for the racially integrated military services. Born in Harlem, New York, Powell grew up with little thought about what he wanted to do in life until he joined the Reserved Officers' Training Corps (ROTC) in college. At once, he knew he was destined for a career in the military.

Powell was commissioned a second lieutenant in the Army in 1958, just 10 years after racial segregation in the military had ended. Reflecting about this exciting time in his life, Powell wrote in his book, My American Journey:

Indeed, Powell rose through the ranks to become in 1989 the chairman of the Joint Chiefs of Staff, the highest job in the U.S. military. This would have been impossible when the military was mired in racial prejudice and segregation. But the military services were forced to change their long tradition of treating the black man as a second-class soldier. In much the same way, equal opportunities have opened for women in all branches of the armed forces. While moving slowly, and at times not at all, the military has nevertheless demonstrated that groups once unfairly branded as inferior are fully capable and deserving of equal opportunity in American society.

African Americans have fought in every U.S. war since the American Revolution. At the outset of the Civil War, however, neither free blacks nor escaped slaves were allowed to enlist in the Union forces. The prevailing racist view among Union officers was that the black man lacked mental ability, discipline, and bravery and could never be trained to fight like the white soldier.

As the Civil War ground on and the need for manpower increased, African Americans began to be admitted into the Union Army, mainly as laborers. Large numbers of free blacks and ex-slaves were recruited for combat only after several successful experiments satisfied military leaders that black soldiers could fight in battles.

African Americans were organized in racially segregated infantry, artillery, and cavalry regiments led by white officers. The black recruits were paid $3 less per month than white privates. After participating in over 400 battles and winning 12 Congressional Medals of Honor, there was little doubt by the end of the war that the black man could fight and fight well.

After the war, Congress established several peacetime black Army regiments, again led by white officers. Assigned mainly to the West, black regiments fought Indians, manned forts, escorted wagon trains, and did other hard and thankless "bad duty" that white soldiers preferred to avoid. Experienced and battle-hardened from the Indian Wars, black soldiers saw much action in Cuba and the Philippines during the Spanish-American War.

When the United States entered World War I, black volunteers flooded recruitment stations. Most of these men, however, ended up assigned to labor units. One poorly trained segregated combat division did not do well in battle. White officers often pointed to it as proof that black men did not make good soldiers. But another black division was dispersed among a number of French combat units. These American black troops, under the command of French officers, not only fought well, but participated in combat shoulder-to-shoulder for the first time with white soldiers. A major step forward for blacks in the military took place during the war when the U.S. Army set up a separate war college to train black officers to lead black troops.

Shortly before the United States became involved in World War II, President Franklin D. Roosevelt's War Department announced a new policy expanding the role of African Americans in the Army. Blacks were to make up 10 percent of enlisted men (up from 2 percent) and were to be admitted to officer training as well as the Army Air Corps. Nevertheless, African Americans remained in racially segregated units. The Navy discouraged the recruitment of blacks and assigned most who did enlist to mess duty. The Marines barred blacks entirely.

While a million African Americans served in World War II, large numbers of them were assigned as laborers away from front-line duty. Top military leaders clung to beliefs that blacks were not as good at soldiering as whites. These leaders also continued to justify segregating whites and blacks as necessary for unit cohesion and morale.

Although black Army Air Corps units entered the war fairly early, black infantrymen did not see combat until nearly the end of the fighting. Because of military necessity, black and white Americans fought successfully together for the first time during the Battle of the Bulge in Europe late in 1944. By this time, many in the military began to think it was wrong to waste manpower because of foolish racial stereotypes.

Studies conducted after the war confirmed that maintaining separate sets of military organizations and facilities for blacks and whites was inefficient, wasteful, and counterproductive to the mission of the armed forces, which is to defend the nation. On July 26, 1948, President Harry S. Truman signed an executive order declaring that "there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin."

Despite continued opposition from some military leaders, the services succeeded in rapidly desegregating during the Korean War. By 1954, all branches of the active armed services were racially integrated on the basis of equal treatment and opportunity. In accomplishing this, the U.S. military moved in advance of the rest of American society, which was just beginning the struggle against racial injustice.

Before World War I, women assisted the military during wartime mainly as nurses and helpers. Some women, however, did become involved in battles. Molly Pitcher, a Revolutionary War water carrier, singlehandedly kept a cannon in action after a artillery crew had been disabled. During the Revolutionary and the Civil War, a few women disguised themselves as men and took part in hand-to-hand combat.

The first enlisted women served in World War I as telephone and radio operators, translators, and clerks. But it was not until World War II that women became part of the regular military. Each service had its own women's corps commanded by female officers. The first of these units, the Women's Army Corps (WACs), enlisted 400,000 women during the war to work in jobs that freed men to fight.

Following the war, the Women's Services Integration Act of 1948 established a permanent place for women in all branches of the military. But promotions for female officers were limited, and women were banned from ground combat jobs as well as from most Navy ships and Air Force aircraft. By the mid-1960s, about 70 percent of enlisted women worked in clerical and other office jobs.

The Army and the other services at first resisted sending women to Vietnam fearing that they would not be able to handle the stress of being in a war zone. But 7,500 military women, mainly nurses, eventually served in Vietnam. Several died in hostile action.

When the all-volunteer military replaced the draft in 1973, the armed forces accelerated its recruitment of women. In 1977, a Department of Defense report clearly identified both the limitations and potential of female recruits at that time:

As the military modernized and weapons grew more sophisticated, education and technical skills became important. This development opened up more military jobs for women, including some combat-related jobs. For example, women became Army transport helicopter pilots and were assigned to nuclear missile sites. The rapid increase in military technology as well as changes in the whole concept of modern warfare blurred the old line separating combat from non-combat jobs.

When larger numbers of women entered the military in the 1970s, pressure mounted for more female officers. Consequently, college ROTC programs and officer candidate schools became co-ed. In 1976, the first female cadets entered West Point and the other service academies. Soon, female officers began commanding men, a concept that had been ridiculed as unworkable only a short time earlier.

During the Gulf War in 1991, about 40,000 women served in the combat zone. This was the largest such female deployment in U.S. military history. During this short war, five women were killed in action and two taken as prisoners of war.

The important contributions made by women in uniform during the Gulf War led to a reevaluation of the combat restrictions on females. Starting in 1993, the bans against women serving aboard Navy warships and flying combat aircraft were lifted. Today, there is a small but growing number of women trained and qualified to fly fighters, bombers, and attack helicopters. Fully 92 percent of all career fields in the military services are now open to women. The only major military careers still off-limits are those in infantry and tank combat units.

There are those who question the idea of integrating women into nearly all military jobs. Brian Mitchell, author of The Weak Link: Feminization of the Military, contends, "What we've got is a policy that says we want women in these jobs not because it's good for the military, but because it's the political will. . . ." Other critics worry that men and women serving together in close quarters will become distracted from effectively carrying out their military duties. Some doubt that females are emotionally prepared to participate in wartime killing, something American women have traditionally not been asked to do.

As the military opens up to groups it once excluded, another group is pushing for acceptance in the military--gays and lesbians. During World War II, the military made it official policy to exclude gay people. Military leaders believed that gay personnel could hurt troop morale.

During the 1992 presidential campaign, candidate Bill Clinton promised to lift the ban on gay people in the military. He noted that many gay persons had served honorably, although secretly, in the armed services. Once elected, Clinton ran into a storm of protest from military and congressional leaders. Clinton and Congress quickly agreed to a compromise policy, called "Don't ask, don't tell." Under this policy, the military may not inquire whether an individual is a homosexual, and homosexuals may not reveal their sexuality. If they do reveal it, they may be discharged. This policy has been challenged in court several times as a violation of first amendment free speech rights and of fifth and fourteenth amendment equal protection rights. In 1997, a district court rule that the policy of "Don’t Ask, Don’t Tell" was unconstitutional, but this decision was reversed by a federal appellate court. Although the appellate court’s decision was appealed, the Supreme Court refused to review the case.

1. What stereotypes about African Americans and women kept them from fully participating in the military for many years?
2. Identify the barriers to equal opportunity that were overcome in the past by African Americans and women in the military.
3. Gay people have recently demanded entry into the military services. Is this issue different from women and African Americans in the military? Do you think gay people should be admitted? Explain your answers.

Chronology of What's Been Happening with Don't Ask, Don't Tell: A web site tour chronicling the last few years of developments regarding the "Don't Ask, Don't Tell" policy.

Women in the Military: A web site describing the role of women in the history of American war.

Blacks in the American Military: A web site describing the role of African Americans in the history of American war.

As women in the military move into more combat-related jobs, the question remains whether this is a good idea. This activity enables students to examine their own beliefs about women in combat.

A. Meet in small groups to discuss and decide which of the following combat jobs should be opened and closed to women. Keep in mind that the main mission of the military is to maintain a superior fighting force to defend the nation.

1. "Top Gun" Fighter Pilot
2. Bomber Pilot
3. Attack Helicopter Pilot
4. Nuclear Missile Crew
5. Tank Crew
6. Artillery Crew
7. Infantry Soldier
8. Ship Gunner
9. Submarine Navigator
10. Army Gen./Navy Adm.

B. After the groups have completed the chart above, list for the whole class the combat jobs that any of the groups have identified as "closed." The class should then discuss the pros and cons of closing to women each of the listed combat jobs. Finally, a class vote may be taken to determine the class's majority view on the listed jobs.

John differs from other students at his high school. He has a severe disability called Down's syndrome. This is an inherited condition that can cause mental retardation. John's I.Q. is 50 (100 is considered normal).

Twenty years ago, it is likely he would have been placed in a hospital or some other institution, hidden away from the rest of society. Only a few years ago, John would have been in a special education classroom all day with little, if any, contact with the non-disabled students at his high school. Today he attends regular classes with non-disabled students most of the day.

With his limited intelligence and vocabulary, John can never learn academics as well as his classmates. But with help from others and modified lessons, he can learn some things. Even more importantly, John will have the opportunity to pick up some language skills and learn to relate better to the "normal world" just by having daily contact with ordinary high school students. In this way, John will have a chance to reach his full potential.

John is among a growing number of moderate to severely disabled young people who are being mainstreamed into regular school classes, largely because of the insistence of their parents backed up by federal law. Some of these students are mentally retarded like John. Others are blind, deaf, physically disabled, or speech handicapped. Some have reading or other learning disabilities, often caused by brain injury.

As more disabled students attend regular school programs, some people wonder if this is the best way to educate them. Schooling for "exceptional children" has undergone many changes over the years. But the question remains: What should be done with the child who is different?

Before 1700, there was little toleration for anyone who was different in Europe and America. People who were blind, deaf, crippled, or mentally slow were often abused, condemned as incapable of improvement, or simply forgotten. But in the mid-1700s, the French Enlightenment began to spread the idea of helping the weak and disabled.

In 1817, Thomas Hopkins Gallaudet , a teacher of the deaf, opened the Connecticut Asylum for the Education and Instruction of Deaf and Dumb [speechless] Persons. This was the first school in America designed to serve a disabled group.

The Massachusetts School for Idiotic and Feeble-Minded Children, one of the first institutions set up specifically for mentally retarded children, was established in 1850. At this time, most caregivers believed that disabled young people needed to live in institutions apart from their families.

The first important challenge to institutionalizing disabled children occurred toward the end of the 1800s. Alexander Graham Bell , the inventor of the telephone, believed that keeping the deaf together in institutions did not help them. Bell explained his views in a letter to Helen Keller , who later became famous for overcoming her complete loss of sight and hearing. "Exclusive association with one another," Bell wrote, "only aggravates the peculiarities that differentiate them from other people, whereas, it is our object by instruction, to do away with these differences, to the greatest extent possible." Bell went on to be an advocate for including deaf, blind, and mentally retarded children in the public schools.

At the turn of the century, the number of children attending public schools increased dramatically due to compulsory education and child labor laws as well as a huge increase in immigrants from Europe. Many public schools developed special education for disabled children. This usually involved creating separate classes. In 1899, Michigan introduced these classes on a state-wide basis. By the 1920s, special education had become well established with its own curriculum and teachers throughout the nation.

For the next 50 years, special education took place mostly in isolated classrooms where disabled children seldom mixed with their non-disabled peers. In the early 1970s, however, a few parents of disabled children began to challenge what they saw as a segregated form of education. They believed this type of education narrowed what their children could learn and become in society. This viewpoint was supported by studies showing almost 60 percent of exceptional children not being adequately served by the schools.

Reformers proposed a different approach called mainstreaming. First successfully used in Denmark and Sweden, mainstreaming means including as many disabled students as possible in regular school classrooms.

In 1975, Congress passed major legislation that attempted to correct the failure of schools to provide an adequate education for many disabled youth. In doing this, Congress rejected isolating these students in their own classrooms in favor of integrating them with non-disabled students in regular classes.

Now called the Individuals with Disabilities Education Act, this federal law requires an appropriate public education for disabled children and young adults aged 3-21. The law does not demand that all disabled students be put into regular classrooms. Rather, students with disabilities must be placed, on a case-by-case basis, in the "least restrictive environment appropriate."

Under the federal law, schools have an obligation to provide individualized help for disabled students so that they will experience success in regular classrooms. This help might include aides, special equipment, and modified lessons and class work as well as the services of psychologists or other professionals. But if instruction in a regular classroom, even with this help, does not benefit a disabled student, he or she may still be placed in a more restricted setting. This could be a combination of regular classes and a special education class, a special class alone, a special school, home instruction, or even a hospital or some other institution. Whichever educational setting works best and is the least restrictive for the student is where that student should be placed.

Although an important reason for placing a disabled student in a regular classroom is to maximize his or her academic achievement, this is not the only purpose. Many of these young people benefit greatly by learning language, appropriate behavior, and other social skills from their non-disabled classmates. This helps to prepare disabled youngsters for the real world later in life. These social experiences in a regular classroom cannot be duplicated in a special education class or separate school settings.

In lawsuits concerning student placements, courts have generally supported including students with disabilities in the regular school environment unless school districts can prove these children are not benefiting academically or socially. Only in rare cases have the courts decided that a disabled student would benefit more from an education in a separate special class or school.

Despite the law, many today still have doubts about the wisdom of including nearly all disabled children, especially those with severe and multiple disabilities, in regular classrooms. Critics say that regular teachers are not trained to teach these children. Also, many school districts lack services needed to help disabled students succeed in a regular school setting. Jim Kauffman, professor of education at the University of Virginia, argues that "we need different instruction for different kids, and you can't have all types of instruction happening in the same place at the same time."

Others worry about the effect of mainstreaming on regular students as well as special education students. When a special education student is in a regular classroom, can teachers devote enough time to all students? In a survey sponsored by the American Federation of Teachers (AFT), 60 percent of the teachers surveyed said they could not devote enough time to special education students. Forty-seven percent said they couldn't pay enough attention to other students. AFT President Albert Shanker says, "Both special education and regular education students appear to be victims of lofty ideals and poor policy. It's unfortunate that school systems are jumping on a bandwagon that is . . . bound to impede student achievement."

Is inclusion in regular classrooms working? Researchers are just beginning to report results of studies comparing the achievement of disabled students in inclusive regular classes with those in separate special education settings. So far, the students in the inclusive classes seem to be doing a little better, particularly in the social skills area.

The early studies also indicate that the non-disabled students do not suffer academically because of the special attention given disabled students in their classes. In fact, there are potential benefits for non-disabled children such as reducing their fear of others who are very different from themselves.

One of the biggest issues concerning inclusion is how to make it work well. Much centers around the regular teacher who often needs training and ongoing help to modify his or her instruction and assignments in order to include those students with certain disabilities. Often, by adopting non-traditional teaching methods such as cooperative-learning groups, peer tutoring, learning portfolios, and oral tests, all students in the class will benefit. In some instances, teachers will have to customize assignments to take into account a student's special disability.

1. How were children with disabilities educated in the past?
2. Federal law requires that students with physical, sensory, mental, and learning disabilities must be placed in the "least restrictive environment appropriate." What does this mean? What are the different educational environments available for disabled students?
3. Why are disabled students included in regular school classes today?

Mainstreaming Strategies: A web page containing links to articles and sites about mainstreaming.

1. Form six groups. The students in each group will make up a support team for one imaginary disabled student in their class as described below.
2. The job of each support team is to brainstorm ways to modify the activities, homework, projects, and tests of the class so that disabled classmates will be able to participate and learn as much as possible together with the other students.
3. Finally, the support teams should present to the class their ideas for modifying the class work of classmates with different disabilities. A team's presentation should include suggestions for teacher instructions, assignments, tests, and student participation that would help make the classroom a better place for the disabled student.

   Diana (90 I.Q.): Due to cerebral palsy, Diana has great difficulty with muscular coordination and speaking clearly.

   Jeremy (110 I.Q.): Jeremy had a skiing accident a year ago which left him immobile below the neck. An aide moves him in a wheelchair from class to class and assists him in other ways at school.

   Latasha (100 I.Q.): Latasha has been totally deaf since birth. Because she cannot hear, she also has not learned to speak normally.

   Carlos (100 I.Q.): Carlos was blinded in an automobile accident at age 5. Today, he has a seeing-eye dog that guides him around school.

   Maria (100 I.Q.): Brain damage at birth left Maria with a number of learning disabilities. She has difficulty reading, writing, and concentrating for more than short periods of time.

   John (50 I.Q.): This is the Down's syndrome student described in the article.

Should Homosexuals Have the Right to Laws
Protecting Them From Discrimination?

During the 1980s, gay political activists in Colorado succeeded in getting homosexuals included in the antidiscrimination ordinances of Aspen, Boulder, and Denver. Generally, these ordinances outlawed discrimination in housing, employment, restaurants, hotels, and government services based on race, religion, national origin, gender, and sexual orientation. The last category protected gay people. Additional state policies protected homosexuals from discrimination in government employment, public university admissions, and insurance coverage.

A number of religious organizations and others grew concerned that the laws and policies protecting gays and lesbians from discrimination seemed to legitimize homosexual conduct and threaten the idea of the traditional family. These concerned citizens formed a group called Colorado for Family Values, which led an effort to do away with the protection of homosexuals in all antidiscrimination laws and policies in the state.

Colorado for Family Values adopted a unique way to achieve its goal. It helped put before the voters a state constitutional amendment with two major provisions. First, it would repeal all sections in existing city and statewide laws and policies that specifically protected gay people from discrimination. Second, and more importantly, the amendment would stop all branches of Colorado state and local government from enacting or enforcing any such measures in the future. [See box for wording of the amendment.]

On November 3, 1993, Colorado voters approved the ballot measure (called Amendment 2) by 53.4 percent to 46.6 percent. Opponents quickly challenged Amendment 2 in court as being in violation of the equal protection clause of the U.S. Constitution's 14th Amendment, which says: "No State shall...deny to any person within its jurisdiction the equal protection of the laws."

The Colorado Supreme Court agreed that the ballot measure violated the equal protection clause. The court stated that the voter-approved amendment denied gay people their "right to participate in the political process." In the spring of 1995, Colorado Attorney General Gale Norton decided to appeal the ruling to the U.S. Supreme Court in a case called Romer v. Evans. (Romer is the governor of the state of Colorado. He opposed Amendment 2, but was named as a party to the lawsuit along with the attorney general and the state of Colorado. Evans is one of the several parties who sued to stop Amendment 2.)

Before the U.S. Supreme Court hears oral arguments in a case, each side must submit a written "brief," which is a document presenting legal arguments and court precedents backing them up. In this case, the court also received several amicus curiae, or friend of court, briefs, from organizations interested in the appeal. The two sections that follow summarize the main legal arguments from the briefs filed in the Romer v. Evans case.

The state of Colorado made the following arguments in favor of the constitutionality of Amendment 2:

Amendment 2 does not treat gay persons unequally. In fact, Amendment 2 only eliminates laws and policies that gave gays and lesbians a "special right" to be protected from discrimination. This is not a violation of the equal protection clause of the U.S. Constitution's 14th Amendment.

Racial minorities, women, and certain other groups that historically have been victimized by discrimination may need special protection by the law. But homosexuals as a group have not suffered widespread mistreatment in Colorado. Generally, gay people are better educated, wealthier, and more politically organized than most other segments of Colorado's population.

Amendment 2 does not take away any fundamental right from gays and lesbians. They, like other Coloradans, can continue to form political organizations, run for office, and vote. They can even try to get laws banning discrimination against gay people, but only by adoption by the people of constitutional amendments. Amendment 2, passed by a majority of the voters, only takes the

power to create "special rights" for homosexuals away from elected and appointed officials and places that power directly in the hands of the citizens themselves.

The state of Colorado has several legitimate purposes for Amendment 2's prohibition against any laws and policies that protected homosexuals from acts of discrimination. They are:

Purpose #1: Amendment 2 reserves the state's antidiscrimination efforts for minorities that really need protection.

Purpose #2: Amendment 2 does away with laws and policies that forced landlords, employers, and churches with sincere objections to homosexuality to have to associate with gay persons.

Purpose #3: Amendment 2 requires civil rights laws to be the same in all parts of the state thus making enforcement of them more efficient.

Purpose #4: Amendment 2 is necessary to end the deep division in the state over the issue of homosexuality brought on by laws and policies granting gays and lesbians special protections in the law.

Purpose #5: Amendment 2 promotes traditional moral and family values by eliminating special legal protections for those practicing the gay lifestyle.

The respondents, those opposed to the constitutionality of Amendment 2, made the following arguments:

The voter-approved amendment singles out gays and lesbians and intentionally denies them their right to utilize regular political institutions like city councils to get laws and policies protecting gay persons from discrimination.

Amendment 2 is nothing more than a cover to deny equal rights to a politically unpopular group. Therefore, the amendment clearly violates the 14th Amendment's equal protection clause.

It simply is not true that gay persons have not been the target of widespread hostility and discrimination. National studies show that homosexuals are the victims of more hate crimes today than any other minority. Also, in some major Colorado cities, there is a long record of police harassment against gay people.

Amendment 2 is too broad and sweeping. All antidiscrimination protections for gays and lesbians are swept away including those that are currently part of police regulations, university non-discrimination policies, state employee firing rules, canons of conduct for lawyers, and regulations of the insurance industry.

The state of Colorado has alleged five purposes for Amendment 2. None are constitutionally legitimate. We rebut them as follows:

Rebuttal to Purpose #1: Colorado claims gay people do not need special protection. But the gay minority, like racial minorities and women, have all suffered from discrimination and deserve the protection of the law.

Rebuttal to Purpose #2: Colorado claims that Amendment 2 did away with laws that harmed people who object to homosexuality. There is no evidence that the city ordinances and state policies protecting gay people from discrimination harmed non-gay persons in any way.

Rebuttal to Purpose #3: While Colorado claims Amendment 2 establishes uniform state-wide civil rights laws, the amendment actually wiped out certain state employment antidiscrimination provisions that applied to gay people.

Rebuttal to Purpose #4: Colorado claims that laws protecting gay people cause too much division among the citizens. This is nonsense. Political conflict and competition are at the core of our democracy.

Rebuttal to Purpose #5: Colorado claims that Amendment 2 eliminates laws that endorse the gay lifestyle. But these laws did not endorse the gay lifestyle: They only attempt to stop discrimination based on sexual orientation.

Since Amendment 2 has no legitimate purpose and is plainly aimed at harming the gay minority of Colorado, it violates the equal protection clause.

1. What type of laws did Colorado gay activists work to enact in the 1980s?
2. What did Colorado Amendment 2 attempt to do?
3. Do you think gay people should have the right to laws protecting them from discrimination? Why or why not?

The National Journal of Sexual Orientation Law: This web site contains links to the articles from the Romer v. Evans issue (1996, volume 2.2) of The National Journal of Sexual Orientation Law, the first on-line law journal in the country and the second devoted exclusively to legal issues affecting lesbians, gay men and bisexuals.

Sexual Orientation and the Law Research Links: This page contains numerous links to web sites about court cases, organizations, and journals dealing with legal issues and developments related to sexual orientation.

A C T I V I T Y

In this activity, students will meet in groups and take on the role of the U.S. Supreme Court justices to decide the Romer v. Evans case.

1. The "justices" in each group should read the equal protection clause of the 14th Amendment.
2. The groups should discuss the arguments presented in the briefs for Colorado and the respondents. Justices should pay particular attention to the purposes of Amendment 2. If Amendment 2 does not violate the equal protection clause of the 14th Amendment, the state must have a legitimate purpose (also called a "rational basis") for prohibiting laws and policies protecting gays and lesbians from acts of discrimination.
3. One justice in each group should take notes on the opinion of the group regarding the arguments made by the state of Colorado and the respondents.
4. After discussing all the arguments, the justices in each group should review their notes and decide the Question Before the Court above.
5. A justice in each group should be prepared to announce the group's decision and the reasons for it. Dissenting justices should also have a chance to give their views.

116 S.Ct. 1620 (1996)

On May 20, 1996, the U.S. Supreme Court decided by a vote of 6-3 that Amendment 2 violates the 14th Amendment's equal protection clause. Among other things, the majority held that there was no "rational basis" for "fencing out" those laws and policies that protected gay citizens from discrimination. In his majority opinion, Justice Anthony M. Kennedy wrote:

. . . the Constitution 'neither knows nor tolerates classes among citizens'. . . . 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 so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause. . . .

In writing for the three dissenters, Justice Antonin Scalia concluded:

No principle set forth in the Constitution . . . prohibits what Colorado has done . . . . The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantial sense, but merely denies them preferential treatment.

© 1996, Constitutional Rights Foundation, 601 South Kingsley Drive, Los Angeles, CA 90005,  (213) 487-5590