WASHINGTON -- In the dialectic of politics, an initial defeat can catapult a cause to a magnified victory, and an improvident victory achieved at one level of government can provoke a larger defeat at a higher level. Popular sovereignty will achieve such a magnified victory and liberalism will suffer such a larger defeat in the Supreme Court this year in a case argued this week. At issue is an act of overreaching by Colorado's supreme court.
By 1992 Colorado homosexuals and lesbians were aggressively advancing their agenda on many fronts. Three cities had enacted ordinances prohibiting discrimination based on sexual orientation in jobs, housing and public accommodations. Various governmental agencies had granted or were considering granting special legal protections to homosexuals, lesbians and bisexuals. The state civil rights commission had asked the legislature to ban discrimination based on sexual orientation, the legislature already had prohibited insurance companies from allowing sexual orientation to influence decisions about a potential customer's insurability, the governor had issued an executive order prohibiting some forms of discrimination based on sexual orientation and several state colleges had similar policies.
A majority of the state's political class and its newspapers supported this. Then the public became provoked.
Family values debate
A group called Colorado for Family Values became the focus of anxieties that state policies were jeopardizing privacy rights and associational, religious and economic liberties. CFV believed that, cumulatively, the policies constituted state endorsement of the idea that homosexuality is a matter of moral indifference. So CFV sponsored an amendment to the state constitution forbidding the state and municipalities from interfering with the private choices of employers, landlords and others by passing special protections for homosexuals.
The American Civil Liberties Union, the League of Women Voters and most Colorado newspapers opposed the amendment. Denver area newspapers and television stations refused to run some of the ads for the amendment. Opponents of the amendment spent almost twice as much as supporters did. It passed anyway.
However, liberals are nothing if not practiced at the art of trying to litigate away the results of popular sovereignty. They went to court. Soon the state Supreme Court held that the amendment violated the U.S. Constitution's guarantee of "equal protection of the laws."
America's most prodigiously productive manufacturing sector manufactures new rights, and the Colorado court's contribution was nothing if not ambitious. It announced that the U.S. Constitution contains a fundamental right that is enormous although hitherto unnoticed. It is the right of any "independently identifiable group" not to have any special impediment placed between the group and the enactment of legislation benefiting it. (The logic of the Colorado court's ruling is that the Bill of Rights is unconstitutional because it erects impediments to certain political preferences, such as the establishment of religion, the abridgment of free speech, the taking of property for public use without just compensation, etc.)
Applies to all groups
Note that the Colorado court's ruling did not pertain merely to groups defined by sexual orientation, but to any group based on religion, economic status, political ideology, race, ethnicity, national origin or any other attribute significant in a political context. Innumerable tax, regulatory and social policies affect in unequal ways innumerable such groups -- smokers, for example. Colorado's attorney general, in her brief asking the U.S. Supreme Court to reverse Colorado's court and thereby "remove the uncertainty of the future of popular government" in Colorado, argues that if the state ruling is allowed to stand, "major public policy issues could not be decisively settled by the political process; government would be obliged continually to reconsider every policy choice."
To be precise, courts would do the reconsidering. Which is why the Colorado court's ruling is so enchanting to liberals who, having lost their ability to persuade American majorities, are eager to expand the sway of judges.
If allowed to stand, the Colorado court's ruling also would further diminish the sovereignty of state governments by working a revolution in constitutional theory. It would do that by making constitutionally dubious any measure that federal or state governments might take to counter social policies favored by lesser political units.
The dialectical process that began when homosexual groups provoked the CFV to rally a majority of voters continued when what the voters did moved Colorado's court to discover a sweeping new power to regulate the political process. This process will be completed when the U.S. Supreme Court echoes these words of former Justice Lewis Powell: "Anytime a state chooses to address a major issue some persons or groups may be disadvantaged. In a democratic system there are winners and losers. But there is no inherent unfairness in this and certainly no constitutional violation."
6* George Will is a syndicated columnist.