Working Paper 93-27, July 20, 1993(1)
By Joseph de Raismes
City Attorney
Boulder, Colorado
(1) This paper is an edited transcript of a talk given by Joseph de Raismes for the Intractable Conflict/Constructive Confrontation Project on April 10, 1993. Funding for this Project was provided by the William and Flora Hewlett Foundation and the University of Colorado. All ideas presented are those of the author and do not necessarily represent the views of the Consortium, the University, or Hewlett Foundation. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: crc@cubldr.colorado.edu.
© Conflict Resolution Consortium. Do not reprint without permission.
Let me first confess my biases. I am the City Attorney, so I am representing the City of Boulder, which has an anti-discrimination ordinance which was adopted in 1989. Also, the City of Boulder is a plaintiff in litigation against Governor Romer and the Attorney General, Gale Norton, attempting to invalidate Amendment 2. So, I am not going to be very objective about describing the proponents of Amendment 2 and you should probably not expect me to be. My additional biases as the City Attorney have to do with having spent three years as an attorney on the national staff of the American Civil Liberties Union as well as five years in the Attorney General's office, which was only a partial antidote to my civil liberties biases.
On the other hand, one needs to recognize that there has been an evolution in the thinking of civil libertarians in this country. For example, the American Civil Liberties Union, which firmly advocated the rights of the Nazis to march in the streets of Skokie, has been on record in the last two terms of the Supreme Court as being in favor of hate-crime legislation and has attempted to defend hate-crime legislation against First Amendment challenges. So, civil libertarians in this country have moved from a firm individualistic stance on First Amendment issues to looking at societal consequences and wondering whether this is the kind of society we all really want to live in.
Additional biases I have are linked to having been involved in litigation, in legislation, and in mediation concerning abortion demonstrations and anti-Persian Gulf War demonstrations. I am the founder and godfather of the Community Mediation Service in the City of Boulder, and at Harvard Law School I was a student of Roger Fisher's. Also, I helped with the mediation of the "bubble zone" involving abortion clinic demonstrations, which was first adopted by the City of Boulder and more recently by the State of Colorado. So, I come to this question, as to many questions, with a bias toward mediation as a way of solving social problems.
But, I do not think this particular conflict over the rights of gays and lesbians in our society is currently a conflict that can be resolved by mediation. The mediation we did for the "bubble zone" did not resolve that conflict, although politically it laid the groundwork for an ordinance which has been quite successful in at least mitigating some of the effects of that conflict on women seeking abortions. So, I have enthusiasm for mediation as a process and yet some battle scars and some cynicism about using mediation to solve certain types of conflicts.
Also, we need to understand that the Amendment 2 conflict is about sexuality. Because of this we need to give each other the space to be crazy about sex--because we are. We are very crazy about this subject. No matter what our orientation may be, we tend to react very quickly.
We know sexual orientation is formed by approximately age six and it tends to be extremely resistant to change. Expert witnesses for both the plaintiffs and the defendants in the Amendment 2 hearings all testified to this fact. It isn't known whether sexual orientation is genetic or whether it is formed by socialization--this may never be known. Experts testified that either thesis can be disproved. Most likely, it is a multivalent phenomenon--a confluence of both socialization and genetic factors. It may not be very helpful to answer this question because it is not known what would be done with the information. It may be more dangerous to know.
There are at least three orientations: homosexual, bisexual, and heterosexual. There are probably at least as many types of homosexuality as there are of heterosexuality. Thus, this is an area of great disagreement and complexity.
I was educated in the process of the trial as to the extremely simplistic nature of the discussion on both sides of the question of what it is that gives rise to a particular sexual orientation. I was made aware, as a practicing heterosexual all my life, to the real difficulties experienced by gays and lesbians who are closeted, who have to go through the experience of what sometimes is called "internalized homophobia." This is according to what is called "gay affirmative therapy," where the person has to overcome their own self-hatred. To do that one has to affirm sexual identity, even though in that process, social and family conflicts are created; there is pain on all sides. We need to understand the pain of the person that is coming out or the one who is not--both choices involve pain--but also the pain of the family, the pain of friends, and the pain of society reacting to gay sexual-identity affirmations such as gay rights parades. I believe in understanding and compassion toward all sides.
Some of the background literature in the Amendment 2 case involves the Diagnostic and Statistical Manual of the American Psychiatric Association know as DSM-4. DSM-4 marks an important diagnostic watershed because it no longer classifies homosexuality as a disorder as did an older version, DSM-3. Until publication of DSM-4, homosexuality had been considered a psychological disorder. Now "disorder" is defined as a sexual orientation with which one is uncomfortable, whether it be homosexuality or heterosexuality. If one is uncomfortable, it is a problem; if one is comfortable, it is not a problem according to the American Psychiatric Association. However, this classification and diagnosis is not a universally accepted view. It clearly points to a very political question.
This classification change coincided with a societal movement, sometimes referred to by the religious right as "the gay agenda," toward more acceptance of--or the demand for more acceptance of--homosexual lifestyles. Homosexuals held gay pride parades, kiss-ins, and other gay rights actions. These activities have created a reaction on the right, sometimes typified by Coloradans for Family Values, the organization which spearheaded Amendment 2. This organization talks about the "gay agenda" much as the nativists in the late nineteenth century, sometimes called the "know-nothings," talked about the protocols of the elders of Zion--the supposed documents by which the Zionist conspiracy was going to take over the United States.
Paranoia exists on all sides in this issue. Recently I was involved in negotiations among various local groups in preparation for the preliminary injunction in the Amendment 2 case. We were to decide whether the City of Boulder would defy Amendment 2, indicate our willingness to abide by the judge's order, or indicate our concern that absent an order, we might be prevented from enforcing our anti-discrimination ordinance. During these negotiations I had a very modest view into the internal conflicts that exist among homosexuals in Boulder over what their political agenda ought to be in light of the confusion and mutual accusations that have come out since the passage of Amendment 2. It is very sad to see, not only society in general, but friends and lovers parted as a result of the political challenge created by the passage of Amendment 2.
Amendment 2 is deeply discriminatory. There is not a fair debate about that. There may be some who will attempt to convince us that Amendment 2 is an enactment of what are sometimes called "special rights." That is, frankly, purely a canard. There is no respectable intellectual argument to that effect. Amendment 2 states:
Neither the State of Colorado through its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts shall enact, adopt, or enforce any statute, regulation, ordinance, or policy whereby homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim they need minority status, quota preferences, protected status, or [and this is the important one] claim of discrimination.
It is necessary to closely analyze this statement. The Amendment states that no government in Colorado shall enact or enforce any policy whereby any lesbian, homosexual, or bisexual may be entitled to claim discrimination. This means that unlike a vast number of other groups in our society, including heterosexuals (who are not mentioned in the Amendment) and religious orientations, homosexuals and bisexuals may not claim discrimination in Colorado if Amendment 2 is sustained. Any other group, whether they be majoritarian or minority, involved in any kind of ideological struggle can claim discrimination based on their class. Unlike all of those others, uniquely, homosexuals and bisexuals will be denied that right if the Amendment is upheld. That is blatant discrimination.
It is discrimination most obviously because of the error that the Amendment 2 drafters made when they adopted it, which reveals their agenda. Instead of saying there can't be any claim of discrimination based on sexual orientation, which at least would have presented a facade of neutrality, they said this particular group may not claim discrimination. They overplayed their hand and in the process they showed what their claim of "special rights" was really about. More broadly, it states that gays and lesbians can be denied access to the voting booth and can be fired arbitrarily based on their orientation. One of the extremely important implications of this is that someone with AIDs can be fired, not because they have AIDs, but because they are homosexual. Of course, the pay-off is that an employer will not have to pay health insurance under a health insurance plan.
It is important to reveal this implication because there is a lot of false consciousness surrounding this debate. Gays will not feel free to speak or come out of the closet because in doing so they will risk a legitimized discrimination that has been grafted onto the State Constitution by Amendment 2. This is an obvious, blatant violation of the First Amendment in addition to a violation of Equal Protection.
Why did Amendment 2 happen? It happened because of prejudice and as a backlash to the movement for gay rights. Our society was able to be more, at least superficially, tolerant in an era when gay rights were not as blatantly demanded and presented. Perhaps it was hypocrisy; perhaps it was what Herbert Marcuse refers to as "repressive tolerance"--keeping people in line so long as they do not assert themselves too boldly. Ironically our society was probably more tolerant before this process began. It may be more tolerant, still, after the process is done. But in the mean time, we are in a phase of struggle.
Amendment 2 also represents a backlash against affirmative action, having nothing to do with gay rights. This fact was indicated by polls after the election. The language in the Amendment addressing "special rights" reflects an attitude among white males and probably some white females--expressing a feeling of being threatened by other groups which have claimed quota status. These other groups have claimed affirmative action more broadly, but a portion of the majority population feel that homosexuals are another group that can potentially make that claim, and that it is time to stop it. This backlash is typified by people who are probably ideologically on the right but may have no particular feelings about gay rights. The "special rights" theme hit a nerve in that general ideological direction.
There is now also a backlash against the boycotts instituted by some ill-advised actions in New York and from some probably better-intentioned actions in Colorado. Now 51 percent of the population is firmly in favor of continuing Amendment 2, with only 43 percent in favor of repeal as of January, 1993. Those numbers continue to get worse for those who think Amendment 2 can be repealed. The only solution in the short-term is to defeat Amendment 2 in the courts. In the long-term, of course, one hopes that these attitudes will continue to evolve and the reactivity generated by the boycott will begin to fail and people will begin to, perhaps, feel some economic consequences. But, those economic consequences, frankly, are pretty hard to predict. Although I understand fully, politically, why the boycott is happening, I think that we all have to understand that it is a dubious utility for deterring other states from adopting similar amendments.
The Coloradans for Family Values group was invited to Colorado by the El Pomar Foundation which put $4 million into moving the headquarters to Colorado Springs. There are now 53 rightist groups who have established themselves in Colorado Springs--it is now basically the center of the Christian right in the United States, a shocking development in Colorado. Colorado has traditionally had a tolerant view. That is evident when looking at our statutes in the area of abortion rights prior to Roe vs. Wade. More recently Colorado was the first state to adopt the "bubble statute." This is not a state that could be fairly characterized as a "hate state." Frankly, if Amendment 2 can pass with the kind of slick campaign that it had last November in Colorado, it can pass anywhere in the United States. We should all be very frightened about that.
The response to the campaign, the language about "hate state," "hate is not a family value," and the Equal Protection Coalition were obviously not effective. The general falsehood of the issue of "special rights" was not effectively refuted. The tie-in to affirmative action was not thoroughly recognized. As a result the family values cluster spoke to a certain sector of our society about issues such as abortion rights, the rights of minorities in our society, and many things about which some people are angry, but which they don't usually express, especially to pollsters. We all thought that Amendment 2 was going to fail until election day. All these things were mobilized in a way which produced a bare majority, but nonetheless, a majority on election day.
This relates in some ways to the history of Boulder's anti-discrimination stance. In 1972 Boulder held its first gay rights referendum which was in response to the city council passing a gay rights ordinance. The ordinance was defeated in the referendum and then subsequently, a gay council member, Tim Fuller, was recalled and the mayor, Penfield Tate, was defeated at the next election. Not coincidentally, Pen Tate was our first, and so far our last, black council member and black mayor. A referendum passed in 1989 enacted Boulder's second ordinance. This was done in a very, very low key way. There was, as is traditional in Boulder campaigns, very little of the kind of emotional hyperbole that was present in the Amendment 2 election. There was not the stirring of emotions as there had been in 1972. As a result in 1984, it passed. It seems that in a more rational, less-emotionally inflamed context, people are willing to be tolerant. Once emotions, especially their emotions about sexuality and affirmative action, are engaged, it appears that there may be a different result. The key in all this seems to be getting to a deeper part of our humanity, which is our understanding of each other. How to do that is the challenge before all of us as we try to figure a way out of the current impasse over Amendment 2.
In terms of the case, we currently have a preliminary injunction from Judge Bayless issued in February. We continue to litigate that case and the Supreme Court will be arguing the case on May 24, 1993. The discussions in local groups have been very instructive for me. There is no monolithic gay agenda. There isn't even a monolithic gay organization. There are as many organizations as there are people at times. We have groups like BOND and BOLD; there is also the Queer Nation group in Boulder. There are a number of different groups with different ideas about how to pursue their agendas. For some, they want to pursue confrontation in an effort to express their outrage. It is a very difficult situation for everyone and it is a testimony to people's ability to get along that we have managed to keep this thing together as long as we have without people splintering. But frankly, the notion of getting the Queer Nation group in the same room with Colorado for Family Values seems to be a very unhelpful way of thinking about how to resolve this. So, although I do favor mediation as a technique for bringing groups together, I suspect that it is somewhere in the middle that it is going to have to come together--not on the extremes.
We have one local case of sexual discrimination currently pending, a very important one involving a firing that occurred just before Amendment 2. This case is coming up for hearing soon and will underscore the importance of dealing with this issue. We have another case currently in discussion phases where the firing occurred immediately after Amendment 2. Other than that, most of our cases have been resolved by some form of mediation to a point where the complaining parties were satisfied. But we need to realize that people's jobs and their livelihood are at stake and we need to understand how important that is in addition to their issues of identity.
How could we handle these issues better in the future? We need more concrete information about what is at stake. We need to understand what sexual orientation is, when it comes about, and that it is not a choice in the way in which Colorado for Family Values thinks about it. It is not some form of mal-depravity, but a part of human existence. Slogans and media campaigns are really inimicable to the rational solution of such matters.
Also we need to realize fundamentally that our state Constitution is too easy to amend. Alexis de Toqueville once said, "Constitutions are made to protect the minority against the tyranny of the majority." If a bare majority of Coloradans can enshrine discrimination in our state constitution, we need to look at whether that is a rational process for protecting minority rights. I favor a two-third majority, because that is what it takes to amend the federal constitution. We need to ask ourselves whether a bill of rights should be so easy to change--whether it ought to be so subject to the winds of prejudice in our society as Colorado's Constitution now is.