"A stranger to its laws": freedom, civil rights, and the legal ambiguity of Romer v. Evans (1996).

• Author: Hasian, Marouf A., Jr.
• Position: Supreme Court case

In the modern world, incremental legal change was the true test of lasting constitutional civil rights litigation. Classical liberal ideology privileges legislative authorities to manage social change, but if these forums abrogated the rights of the needy, the judiciary would, in due time, use essential constitutional principles to set things right, to restore lost civil rights. Of course, the paradigmatic example of this process is the Supreme Court's rejection of segregation, and Plessy v. Ferguson (1896), in its 1954 Brown v. Board of Education decision. Even though it took fifty years, the judiciary ultimately corrected its own error and fomented fundamental social change.

But in the postmodern era, the once confident American judiciary has found itself assailed by the strident objections of an increasing number of disenfranchised and disempowered communities. Perhaps no case better illustrates the complications of postmodernity for legal argumentation than the recent Supreme Court cases concerning the civil rights of gay and lesbian Americans. For much of American legal history, gays and lesbians have been invisible, and only recently have the courts openly discussed their civil rights. Most notably, in Bowers v. Hardwick (1986), the Supreme Court held, 5-4, that the "act of homosexual sodomy"(1) was not "protected as a fundamental right" because of the "millennia of moral" teachings that proscribed such behavior (p. 197). In the decade since Bowers, the federal courts have reached conflicting conclusions concerning the military service of gays and lesbians, child custody issues, same-sex marriages, and insurance discrimination. In most of these cases, gays and lesbians faced the Bowers precedent that often blocked egalitarian reform.

Despite the Bowers decision, though, optimistic civil rights activists contend that change is forthcoming. Their optimism was buoyed by a 6-3 majority opinion of the Supreme Court in Romer v. Evans (1996), that struck down Colorado's Amendment 2 as an unconstitutional infringement of the "political" rights of gays and lesbians. One gay rights activist, Thomas Stoddard, claimed that "gay people will feel embraced by the highest judicial court of the land" (quoted in Nagourney, 1996, p. 4). A writer for the Wall Street Journal claimed that this ruling would mean that anti-bias legislation would be upheld in nine states and more than 100 cities ("The Supreme Court," 1996, p. 1). Detractors like Kevin Tebedo worried that the "homosexual political lobby" will increase "its efforts in the public schools, in the public square, to try and force this nation to affirm and legitimize open homosexuality" (qtd. in Moss, 1995, p. 28).

Framed within the traditional discussions of liberalism, conservatism and American jurisprudence, the Romer decision is, seemingly, anomalous. Historically, gays and lesbians have not been considered a "suspect class," and most discriminatory legislation was upheld using the minimal rational relationship test.(2) Yet the Romer decision is praised as a watershed event in the evolution of gay and lesbian rights in the United States. Given the legally confusing nature of this case, and the praise it elicited from civil rights activists, how do rhetoricians explain the Romer decision? We offer a reading of this case that eschews traditional and formalistic legal analysis in favor of more critical approaches to understanding the role of law in lived experience and communal life. In particular, we see Romer as an opportunity to engage in a "critical rhetoric," and specifically in a "critique of freedom" (McKerrow, 1989). We maintain that the praise for Romer is premature and ignores the contextual and legal factors that adhere to the case and that undermine its civil rights potential. As such, we believe Romer should be read skeptically, critically, and with pause given its place within the trajectory of legal rhetorics addressing the civil rights of gays and lesbians.

This analysis first considers the nature of "critical rhetoric" and the applicability of this theoretical perspective to legal rhetorics. Next, we outline some of the. contradictory legal and public arguments that were used in Bowers v. Hardwick (1986) and that were found in the promotion of Colorado's Amendment 2. Third, we examine closely the arguments, briefs, and decisions in Romer v. Evans (1996) in order to explicate the need for skeptical treatments of these rhetorics. Finally, we advance some tentative conclusions about the judicial future of gay and lesbian rights given the presence of both Bowers and Romer in American law.

CRITICAL RHETORIC, LEGAL RHETORICS, AND THE CONSTRUCTION OF FREEDOM

In classical liberal theories of jurisprudence, a scholar's role in understanding the "role of law" involves uncovering the clear and consistent norms that guide correct legal behavior. In many cases, this is a hermeneutic exercise, where a jurist, lawyer or scholar is supposed to be an expert in understanding the rational paradigms that ought to govern conventional legal thinking. While pragmatically acknowledging the role that politics, power and prejudice might play in the discovery of legal rules, the believer in classical liberal theorizing still maintains that ideally the law should transcend these mundane squabbles and mandate the strict observance of neutral principles in dispensing justice.

Critics of liberal jurisprudential reasoning contend that scholars and legal practitioners need to sensitize themselves to the power relationships that are created by and through legal discourse. While formalists and other rationalists may search for the enduring legal principles or standards, their postmodern critics demand that the focus of scholarly attention shift to the sustenance of power relationships via legal discourse. Even the most polished and popular legal text, according to this perspective, is now treated as a temporary inventional document filled with malleable parts.

A recent theoretical move in rhetorical scholarship also advocates shifting the focus of criticism away from the generation of positivistic knowledge claims or historical "troths," and toward a critique of the exercise of power in collective life. The "critical rhetoric" turn urges rhetorical critics to engage in political, productive and performative acts that seek to undermine the power relationships so characteristic of collective existence (McKerrow, 1989). Moreover, the critical rhetorician also strives to critique the presence of "freedom" in collectivities with a skepticism that guards "against 'taken-for-granteds' that endanger our freedom-our chance to consider new possibilities for action" (McKerrow, 1989, p. 97).

The "critical rhetoric" project, and the plethora of responses, validations and criticisms it has provoked (e.g. Cloud, 1994; Charland, 1991; Gaonkar, 1993; Hariman, 1991; Kuypers, 1996; McKerrow, 1991, 1993; Murphy, 1995; Ono & Sloop, 1992; Owen & Ehrenhaus, 1993; Zompetti, 1997) are interesting for the orientation, the perspective that they call forth in the act of rhetorical criticism. This project puts forth, once again, the "radical" notion that criticism is political, that it should be political, because, like the rhetoric its scrutinizes, rhetorical criticism can and should have consequence. As such, to be a critical rhetorician is to recognize the power of rhetoric in communal, political life that Isocrates identified centuries ago, that Campbell (1972) maintained should inform our criticism of presidential rhetoric, that Wander (1983, 1984) suggested should ideologically turn our scholarship toward the voiceless and unheard, and that Ivie (1995) argued should result in productive criticism. The project is unique, perhaps, for McKerrow's (1989) ability to infuse American rhetorical studies with the critical theories of noted European thinkers. At bottom, though, critical rhetoric simply attempts to keep rhetorical criticism on the trajectory of sustained political, ideological engagement that has characterized much of the meta-critical, meta-theoretical work in rhetorical studies for the last twenty-five years.

Legal rhetorics are, or should be, particularly susceptible to analysis governed by a "critical rhetoric" perspective precisely because of the materiality of language in the judicial/legal realm of discourse. In his discussion of Foucault's conceptions of power, McKerrow (1989) identifies judicial power that speaks "in terms of rights, obligations, and of the possibility of exchanging power through the legal mediation of conflicting interests" (p. 97). To understand and critique the exercise of this power, or any other type of power, the critical rhetorician attends to the "microphysics of power" to understand "what sustains social practices" (McKerrow, 1989, p. 98; cf. Cloud, 1994). Put another way, the critical analysis of legal rhetorics "seriously engage[s] the political and ideological implications of the relationship between rhetoric and law for life-in-society" (Lucaites, 1990, p. 445; cf. Bruschke, 1995; Rountree, 1995).(3)

A critical analysis of legal rhetorics pays particular attention to the ability of such rhetorics to persuade audiences of the presence of freedom and rights. That is, such rhetorics exist significantly to express and demarcate the relationships of communal life, and to establish the precise nature of the social contract and the respective roles of the state and the individual. In so doing, such rhetorics enact tremendously powerful discourses of freedom and obligation. Within the prevailing ideological nature of Western, Anglo-American rhetoric, these constructions of freedom are influential and persuasive and often come to be naturalized and dehistoricized. A critical rhetoric seeks to uncover the contingent and constructive nature of these rhetorics, to cast a skeptical glance at their demarcative power, and to offer additional or substitute...