WASHINGTON -- Moving into the midst of an emotional debate over rights for gay people, the Supreme Court voted yesterday to rule on a claim that homosexuals should have no legal protection under the Constitution.
Colorado made that claim in an appeal that seeks to revive a state constitutional amendment against gay rights. The state Supreme Court nullified that ban last fall, saying it interfered with the "fundamental right" of gays and lesbians to ask government for protection against bias.
While homosexuals have no guarantee that such laws will be passed, the state court said, they do have a right to ask their government to enact favorable laws.
Not since 1986 has the Supreme Court taken on a case involving gay rights, and six of the nine justices then on the court have retired. The new case thus will pose a major test of the court's views on the issue.
The state of Colorado, arguing that its highest court had given homosexuals "special rights" that exist nowhere in the U.S. Constitution, urged the justices to make clear that state lawmakers or voters may take away from state and local government at all levels the option of passing gay rights laws.
Colorado voters in 1992 put such a ban into the state's constitution, thus repealing gay rights laws that existed in five Colorado cities and equal rights policies at three colleges and one school district, and ensuring that there would be no more such efforts in Colorado.
The Colorado initiative has provided a model for anti-gay activists around the country. While gay rights organizations have blocked several of those efforts, others have succeeded, at least at the local level, in other states.
The new case focuses on gay rights in politics, but the outcome of the case could have a wider impact, perhaps affecting the efforts gaining support in California to ban all affirmative action plans in public education and government jobs and contracting.
Suzanne Goldberg, a lawyer for the Lambda Legal Defense Fund, a gay rights advocacy organization, said the Colorado case "has important implications for the California affirmative action measure, and other initiatives that seek to limit civil rights," depending on how sweeping the Supreme Court's final ruling is.
The Colorado case does not pose directly the broadest issue of constitutional rights for gays: whether homosexuals are entitled to the same rights of equality as blacks, women and other groups that have been the targets of past bias. If homosexuals were given a right of equality, it would outlaw many forms of official discrimination based on their sexual orientation.
The Supreme Court has never heard a case on that basic question, but cases now in lower courts on gays in the military may pose it later.
Rather, the Colorado case turns on whether political activity in a state must be left open to the participation of all identifiable groups -- including homosexuals -- when those groups band together to ask for the enactment of favorable laws. The Colorado Supreme Court decision requiring such open political access was based in part on a series of Supreme Court rulings that it is unconstitutional to bar blacks from seeking laws that would protect them from official discrimination.
The state's appeal argues that those rulings ought to be confined to racial groups. A Supreme Court ruling is expected next year.
Free speech and trains
In a second major action yesterday, the court ruled 8-1 that Amtrak -- the nation's railroad passenger service -- is part of the government, and thus must obey the Constitution's Bill of Rights, including the right to free speech. The government is so heavily involved in Amtrak's management and financing that the passenger service must be considered government itself, the court declared.
That ruling is likely to mean that Amtrak must allow political advertising in its stations, and presumably on its trains. It also may mean that Amtrak stations could become the scene of political activity, perhaps including protest demonstrations.
The decision, written by Justice Antonin Scalia, could reach beyond Amtrak and require other government-created entities to respect the constitutional rights of citizens with whom they deal.
With the move to "privatize" more government functions, including some public schools and some prisons, the new ruling makes it appear that government may not hand over its core functions to private entities without also handing them the same duty that government has to obey the Constitution.
Ordinarily, the Constitution does not apply to private businesses or organizations.
The Amtrak ruling came in a case involving a New York artist who creates billboard displays, and who wanted to put up a huge billboard in Amtrak's Penn Station in New York. The billboard ad was to have been a political message attacking the conservative political causes supported by the family that brews Coors beers.
The ad, a takeoff on the Coors' slogan that it is the "right beer," would have declared: "Is it the Right's Beer Now?"
The Supreme Court did not directly order Amtrak to allow that billboard. It sent the case back to a lower court to consider the next step.