Postmodern Liberalism and the Expressive Function of Law

Summary

INTRODUCTION

In 1992, the city of Boulder, Colorado, passed an ordinance forbidding discrimination against homosexuals in employment and housing. Two years later, voters in the state of Colorado passed a constitutional amendment forbidding the passage of local ordinances prohibiting this form of discrimination. The constitutional amendment did not mandate discrimination against homosexuals; it merely nullified ordinances such as Boulder's. The amendment was later struck down by the U.S. Supreme Court as unconstitutional.

On the face of it, the controversy surrounding the ordinance and the constitutional amendment was a tempest in a teapot. Boulder, the home of the University of Colorado, enjoys a reputation as a tolerant city. Discrimination against homosexuals in employment and housing did not appear to be a significant problem in the city. To be sure, victims of this form of discrimination did not see it that way, but even if such discrimination is wrong, it does not follow that there should be a city ordinance against it. The law cannot right all wrongs, and discrimination ordinances of this sort are generally relatively easy to evade. So what is the point?

Similarly, at the state level, the need for the constitutional amendment was not evident. Although Aspen and Denver had similar ordinances, there was no evidence that other municipalities were about to pass some form of the Boulder initiative. Why should the citizens of Colorado care about city ordinances such as these?