Date of this Version
Notre Dame Journal of Law, Ethics and Public Policy (1995) 93-135.
Grassroots initiatives like Amendment Two are the product of a populist revolt against restrictive homosexual rights laws. These initiatives are an attempt by the people to protect their basic civil liberties and to promote equal citizenship values. Homosexual rights legislation stigmatizes, marginalizes, and fences out groups and individuals who hold traditional beliefs about sexual morality. Citizen initiatives operate to remove this stigma and its harmful consequences by restoring government to a position of benign neutrality regarding competing visions of human sexuality.
When initiatives like Amendment Two are approved by vote of the people, they are likely to be challenged under the Constitution by advocates of the homosexual regulatory agenda. Although these legal attacks may have some initial success in state courts and lower federal courts, they will falter in the long run because Amendment Two and its progeny are perfectly consistent with the letter and spirit of the Constitution as interpreted by the Supreme Court.
Homosexuals are not a suspect class, and there is no fundamental right for any identifiable class of persons to have its regulatory agenda insulated against the civil liberties of the people.Initiatives like Amendment Two are rational and reasonable laws designed to protect economic, religious, and other basic freedoms of citizens. Therefore, these laws should easily pass rationality review.
Charles Kingsley once observed that there are two kinds of freedom, "the false where one is free to do what he likes, and the true where he is free to do what he ought." Enactment of the homosexual regulatory agenda shackles true freedom in the chains of false freedom. Amendment Two and its progeny are designed to remedy this injustice. These initiatives are not unconstitutional and should be vigorously enforced wherever and whenever they are adopted.