Court ruling highlights US election tension over gay rights

US GAY rights groups are jubilant at a decision clearing the way for state and local authorities to pass new measures to protect homosexuals from bias.

The ruling has a political significance in an election year as the Republican contender, Senator Bob Dole, has been critical of President Clinton's support for gay rights. The President's reaction in calling the decision "appropriate" was low key - he wished to avoid giving further ammunition to opponents that he is "soft" on the gay rights issue.

The last time the Supreme Court ruled on a matter affecting the gay community 10 years ago it was to refuse to strike down the Georgia law which criminalises homosexual acts, so the decision is seen as a significant shift in favour of gays and lesbians by what is viewed as a conservative court.

The decision refers only to the situation in Colorado but it is expected to block attempts by a number of states also to hold referendums to authorise anti gay measures. The Colorado Amendment 2 which has now been struck down was passed by popular vote in reaction to regulations in Aspen, Boulder and Denver prohibiting bias against gays in housing and jobs.

The people of Colorado voted by 53 per cent against measures to protect homosexuals. The amendment was not put into effect pending the court decision but Colorado lost numerous conventions of national organisations because of the anti gay vote.

There has been some shock at the dissent by one of the Supreme Court judges, Antonin Scalia, at the majority judgment by six votes to three. The dissenting opinion was supported by Chief Justice William Rehnquist and Judge Clarence Thomas Justice Scalia insisted on reading the dissenting opinion which said that court "has no business imposing upon all Americans the resolution favoured by the elite class from which the members of this institution are selected, pronouncing that animosity towards homosexuality. . . is evil". He said the court should not interfere in a "rather modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws".

But the majority judgment read by Justice Anthony Kennedy was unequivocal in its denunciation of the Colorado amendment. "We must conclude that Amendment 2: classifies homosexuals, not to further a proper legislative end, but to make them unequal to everyone else. This Colorado cannot do, state cannot so deem a class of persons a stranger to its laws," the judgment said.

However, the judgment does try to put sexual orientation on a footing similar to race or gender under US Constitutional law.

Neither will it mean that efforts to ban gay marriages or to continue restrictions on gays in the military will not be pursued.

But the court has clearly rejected the conservative argument that homosexuals were being treated as a "special" group. For the court it was a question of ensuring that homosexuals were protected by the "equal rights" clause in the Constitution.

Justice Scalia pointed out the "contradiction" between the decision and the position taken by the court in 1986 when it held that the Constitution does not prohibit making homosexual acts a crime as Georgia and some other states do.

There is an echo here with Ireland where the Supreme Court refused to decriminalise homosexual acts in the case taken by Senator David Norris but the European Court of Rights ruled in his favour and the law had to be changed. But in the US the Supreme Court cannot be over ruled. The only way around a ruling is by a Constitutional amendment approved by Congress and a majority of the states' legislatures.

The US court's ruling and the division it produced among the nine judges reflects the strong views held throughout the country on homosexual rights.

Conservatives perhaps fear the way has been opened for further judgments favouring homosexuals. Mr Matt Coles, a member of the legal team fighting the Colorado amendment, and also of the American Civil Liberties Union, said the ruling ought to weaken the government's position in barring homosexuals from serving openly in the military.

President Clinton has long been a hate figure for conservatives. The court decision could win him even more enemies. Bob Dole, no supporter of the gay community, will be pondering how the Supreme Court may have handed him an unexpected advantage.