Colorado Amendment 2 and the Metaethics of Language

John C. Rankin

[excerpted and adapted from First the Gospel, Then Politics …, 1999-2004, Vol. 2, not published]

In 1992, Colorado Amendment 2 was passed by a 52-48 percent margin. It was in in response to certain municipalities in the state passing “gay rights” laws, a grass-roots initiative seeking to amend the State Constitution. The Christian and pro-family organizers of this initiative argued that “gay rights” equaled “special rights” as opposed to equal rights. And these “special rights” were being given to a class of people that do not qualify as a civil-rights group. The pro-family organizers repeatedly said that they had no desire to deny equal civil rights to homosexuals, that their only protest was that these municipal laws were giving extra rights to homosexuals. By seeking to amend the State Constitution, they sought to settle the issue statewide, and not just by municipality.

However, the language chosen, while done so with integrity, carried a negative reality sufficient enough for homosexual advocates to oppose successfully at the emotive level.

“Article 2, Section 30 of the Colorado Constitution:

“NO PROTECTED STATUS BASED ON HOMOSEXUAL, LESBIAN OR BISEXUAL ORIENTATION. Neither the State of Colorado, through any of 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 minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.”

The amendment was successfully petitioned for placement on the state ballot, and the voters were asked to vote “yes” or “no” to the following:

“Shall there be an amendment to Article II of the Colorado Constitution to prohibit the State of Colorado and any of its political subdivisions from adopting or enforcing any law or policy which provides that homosexual, lesbian, or bisexual orientation, conduct, or relationships constitutes or entitles a person to claim any minority or protected status, quota preferences, or discrimination?”

On top of the negative phrasing of the amendment, it also adds specified syntax that amplifies a sense of alienation, and energizes the homosexual advocacy. Even though a pansexual jihad takes no prisoners in politics. But how does the positive of the Gospel overcome it?

Colorado Amendment 2 was later overturned by the U.S. Supreme Court (Romer v. Evans, 1996). When it was overturned, it was not a legal argument that was made, but an emotional one which relates to the metaethics of language. Justice Anthony Kennedy, writing for the 6-3 majority, claimed that the Amendment has an animus against a class of people – that is, a hatred for homosexuals as its target, and thus it does not constitute valid law.

The assumption on Kennedy’s part was that homosexuality constitutes a valid civil-rights class such as gender or race. But this goes against the Sixth Circuit Court of Appeals in a 1993 decision, and the 1986 U.S. Supreme Court Bowers v. Hardwick ruling which upheld the constitutionality of anti-sodomy laws (as much as I will argue that a biblical ethic in a non-theocracy should not have anti-sodomy laws, as Justice Clarence Thomas indicated in his dissent to Lawrence v. Texas in 2003 which overturned Bowers). The Sixth Circuit Court was ruling in reference to the City of Cincinnati and its refusal to pass “gay-rights” statutes. The Court said in 1993:

“Since Bowers, every circuit court which has addressed the issue has decreed that homosexuals are entitled to no special constitutional protection, as either a suspect or quasi-suspect class, because the conduct which places them in that class is not constitutionally protected …

“Assuming arguendo the truth of the scientific theory of sexual orientation is a “characteristic beyond the control of the individual” as found by the trial court, see id. at 437, the reality remains that no law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics such as innate desires, drives, and thoughts. Those persons having a homosexual “orientation” simply do not, as such, comprise an identifiable class. Many homosexuals successfully conceal their orientation. Because homosexuals generally are not identifiable “on sight” unless they elect to be so identifiable by conduct (such as public displays of homosexual affection or self-proclamation of homosexual tendencies), they cannot constitute a suspect class or a quasi-suspect class because “they do not (necessarily) exhibit obvious, immutable, or distinguishable characteristics that define them as a discrete group” (Bowen v. Gilliard, 1987).

The Sixth Circuit was essentially saying that homosexuality is a state of the mind or emotions, which is theologically accurate. They paid reference to the “scientific theory” argued by the lower court that homosexuality is a “characteristic beyond the control of the individual.” But even if such an erroneous theory were to be accepted, homosexuality remains a “subjective” identity. Homosexuals can choose to conceal or reveal it, whereas a person’s immutable race or gender cannot be so easily and subjectively manipulated.

As well, we know that people can move in and out of homosexual identities and/or conduct and/or lifestyles, and that people do change – in both directions. Thus, if as a class of people they were to be either penalized or given special rights, it could not be uniformly enforced. People could claim to be heterosexual in order to avoid a penalty assigned against homosexuals as a class, or they could claim to be homosexual or bisexual if they wanted to claim a benefit assigned to such a class. This is why anti-sodomy laws were mostly written with respect to a class of people, but legally apply to the specific nature of its conduct, no matter who practices it – homosexual or heterosexual. And this is one reason why I am not concerned to address homosexuals as a class, but each as individuals made in God’s image.

In my estimation, the reason that the U.S. Supreme Court overturned Colorado Amendment 2 was because the amendment’s language was set in opposition to “homosexual, lesbian or bisexual orientation.” It was perceivable as having an animus against such people, as opposed to having an animus against certain actions. And the rule of law, by definition, is meant to have animus against actions which deprive or threaten to deprive other people of life, liberty or property. A proper legal animus against certain action is first based on the positive protection of unalienable rights, and then prescriptive laws against actions which threaten those rights. The law does have proper animus against theft, murder, rape and other violations, but not against any identifiable group of people, whether defined objectively or subjectively.

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I thus aim for a solid metaethics of language, proactively per the biblical order of creation and the Declaration of Independence:

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Proposed Resolution #4 for the U.S. Congress and the Legislatures of the Several States:

Human Sexuality and Civil Rights

  1. All persons hold the unalienable rights to life, liberty and property, and therefore they hold equal dignity and protection under due process of law;
  2. The historic family unit, rooted in heterosexual faithful monogamous marriage and the raising of children, is the basic institution in society;
  3. There are those persons, whether by choice, circumstance or the brokenness of adversity, who do not participate fully or partly as members of the historic family unit.

Therefore, we affirm:

  1. Marriage is defined as the union of one man and one woman;
  2. No punitive laws shall exist to restrict private association – whether heterosexual or homosexual; and
  3. All persons shall accept accountability for the public consequences of their private associations and actions, and they shall in no way deprive others of life, liberty or property.

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In various forums where I have shared it with homosexual advocates, they have either embraced it or not objected to it. And consistent with this resolution in my proposed rewrite of state and federal law (in The Six Pillars of Honest Politics, click on teibooks.com), I state:

“The social compact is dependent on the prior integrity of man and woman in marriage insofar as attainable, and on the fullest presence possible of both father and mother in the raising of children.”

Marriage between a man and woman then later gain legal status is the only definition of marriage.

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