One of the toughest jobs for the judiciary is balancing two different Constitutional provisions that somehow, in some particular case, have managed to come into conflict — where do you draw the line?

Then again, sometimes it's not so tough. This past week, the Supreme Court tossed out Colorado's infamous Amendment 2, which, said its proponents, the usual gang of quasi-religious fascists, prevented the creation of "special rights" for one particular group — Colorado's homosexuals. Of course, their concern over gay rights was limited to the horrifying possibility that some might actually exist and be recognized; the cities of Denver and Boulder had already enacted laws that prohibited discrimination on the basis of sexual orientation, and the Amendment 2 crowd was more than happy to invalidate those laws.

By a 6-3 count, the Supremes saw through this particular scam. (Justice Scalia, who wrote a blistering denunciation of the majority view in his dissent, still seems to be of the opinion that government's primary role ought to be regulating genitalia.) In actuality, the "special rights" to question were those of that bloc of self-proclaimed Christians who insist that the Constitutionally-guaranteed free exercise of their religion requires them to inflict their perverse fantasies on the rest of us. Creation of a pariah class, said the Court, is not acceptable, period, and it doesn't matter what sort of Scriptural interpretation you're trying to sell.

The perpetrators, of course, went ballistic — what did you expect? — and there were the usual semi-vague threats of retaliation, against gay activists, against legislators, even against the Court. The rest of us are just breathing a little easier. And while it's way too early to predict that Bowers v. Hardwick will be overturned, even that particular action has a balancing act of its own to consider; if Bowers were to be reversed, it would presumably be impossible to prosecute the proponents of Amendment 2 for having their collective head up their ass.

The Vent

#8
22 May 1996

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