Vol. 10 No. 4 (April 2000) pp. 251-253.

STRANGERS TO THE LAW: GAY PEOPLE ON TRIAL by Lisa Keen and Suzanne B. Goldberg. Ann Arbor: The University of Michigan Press, 1998. 272 pp.

Reviewed by Kate Greene, Department of Political Science, University ofSouthern Mississippi.

In October 1993 a trial began in the Colorado District Court for Denver. EVANS v. ROMER was a challenge to Colorado's Amendment 2, an initiative passed in November of 1992 which amended the Colorado Constitution to repeal any existing city, town, or county law or school board policy in Colorado that protected a person with homosexual, lesbian, or bisexual orientation from discrimination. It also prohibited future adoption or enforcement of any similar law or policy. The initiative that became Amendment 2 was the work of a group of anti-gay activists known as Colorado for Family Values. STRANGERS TO THE LAW: GAY PEOPLE ON TRIAL is the story of that court case from its origins in the Colorado court system as EVANS V. ROMER to its ultimate resolution in the U.S. Supreme Court as ROMER V. EVANS (1996).

The authors of STRANGERS TO THE LAW are Suzanne Goldberg and Lisa Keen. Goldberg is a Lambda Legal Defense and Education Fund attorney. She was involved in the case from its inception and Keen is the Executive Editor of the WASHINGTON BLADE and the NEW YORK BLADE NEWS and has covered gay and AIDS related cases in the U.S. Supreme Court since 1985. As one would expect, these women give the reader an insider's look at the case. STRANGERS TO THE LAW contains an examination of the origins of the Amendment by the religious right, a first hand account of the debates surrounding the legal strategy for the gay and lesbian plaintiffs, and an extensive account of the trial, including a significant amount of actual testimony. It concludes with an examination of the appellate process and the U.S. Supreme Court decision. A final chapter examines the aftermath and effects of the case. It is a well-written story and an interesting presentation of the trial and its results.

Most of this book is devoted to the story of the trial in the Colorado District Court. The plaintiff's strategy was to argue that the Amendment should be judged using the level of review in Fourteenth Amendment equal protection clause cases known as strict scrutiny. Under strict scrutiny, the government, in this case the state of Colorado, must show that the law or classification being challenged is narrowly tailored to serving a compelling governmental purpose or interest. Few classifications have ever survived strict scrutiny because the presumption is that the law is unconstitutional and there is a heavy burden on the government to prove its constitutionality.

The problem for the plaintiffs was that the U. S. Supreme Court has only held that suspect classifications or laws infringing on fundamental rights must undergo strict scrutiny. The plaintiffs

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intended to argue both that the Amendment violated the fundamental right of plaintiffs to access to the political process and that sexual orientation was a suspect class. Unfortunately, only race and alienage had been held to be suspect classifications. According to Goldberg and Keen, in order to identify a suspect class, the court must consider the following factors: whether the group has experienced a history of past purposeful discrimination or unequal treatment, whether the characteristic is "obvious, immutable or distinguishing", and how much political power the group has to ensure its rights are protected and to defend against attacks in the mainstream political process (p. 37).

The individual chapters on the trial are focused on the efforts of the plaintiffs to prove that sexual orientation is a suspect class through the factors described above, the effort of the state to justify its law, and the plaintiff's effort to rebut that justification as a pretext for discrimination. Since these topics parallel the chronological sequence of the presentation of evidence in this case, it is an obvious and logical way to present the material. This allows the reader to feel as though she is in the courtroom as the testimony is being given without having to sit through the imaginably endless hours themselves. The conclusion of the Colorado trial and appellate courts was that Amendment 2 failed under strict scrutiny, but not because sexual orientation was a suspect class. Rather, strict scrutiny was applied because the law restricted gays and lesbians fundamental right of access to the political process. Goldberg and Keen carefully explain each of these lower court decisions. The authors also provide a description of the oral arguments before the U.S. Supreme Court and then a description of the Court's opinion. This opinion is included in full in the book's appendix. Unlike the Colorado courts, the U.S. Supreme Court refused to use strict scrutiny and decided ROMER v. EVANS using the rational basis test. Simply, it held that despite the litany of justifications for the law supplied by the state, the only rationale for the law was animus toward gays and lesbians, which is not a legitimate reason for legislation. This book is clearly intended for a lay audience rather than a scholarly one. The book is a great story and it lays out all the arguments, legal, social and scientific, surrounding the question of gay and lesbian rights in the United States. The law and legal process are clearly and simply explained for the reader's understanding and the presentation of the evidence is placed in the context of the legal argument being made.

For the scholarly reader what is lacking in the book is any kind of thorough legal or political analysis. The authors explain the law and arguments well, but fail to analyze the legal foundations of the case. Even though the final chapter attempts to look at the question of law and social change, it is more an examination of the interest group politics that followed the decision in ROMER v. EVANS than an analysis of the legal strategy and issues. If this book is intended for a general audience, then it has served its purpose well. A scholarly audience, however, will be disappointed in STRANGERS TO THE LAW because it lacks a theoretical perspective on the law and the decisions produced throughout the legal process. It also lacks a critique of the political strategy of the gay and lesbian movements. I believe this text could have greatly benefited from a critique based on Shane Phelan's GETTING SPECIFIC: POSTMODERN LESBIAN POLITICS (1994). In GETTING

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SPECIFIC, Phelan urges lesbians and gay men to stop trying to justify their existence and instead to begin questioning the heterosexism and homophobia of our society and institutions. It seems clear that the legal strategy of the plaintiffs in the case of EVANS v. ROMER amounted to an attempt to justify lesbian and gay existence. The subtitle of the book, GAY PEOPLE ON TRIAL, supports this conclusion. The argument that discriminating against a class of people for moral reasons and blocking their access to the political process could not satisfy even the rational basis test was the fallback argument. Yet, it was this argument that prevailed in the Supreme Court and which actually corresponds with Phelan's suggestion. The U.S. Supreme Court overturned Amendment 2 because it was a blatant example of heterosexism and homophobia and these are not legitimate governmental purposes.

The authors of the book conclude with an apparent regret that the U. S. Supreme Court did not try to "educate readers about gay people to overcome... biases and correct misinformation." The book seems to want to do just that. It is a commendable goal, but I must agree with Phelan that it is misplaced. It should not be lesbians and gay men who are on trial, rather it should be those who believe they can discriminate against a class of persons simply because they are different. That is the real issue that the law must address.

REFERENCE:

Shane Phelan. 1994. GETTING SPECIFIC: POSTMODERN LESBIAN POLITICS.

Minneapolis: University of Minnesota Press.