Few people predicted the passage of Amendment 2. Gov. Roy Romer was seen as a moderate Democratic governor. Three cities (Aspen, Boulder and Denver) had approved gay rights ordinances.
And then along came the push back from conservatives, Amendment 2, and a surprising switch in how Colorado was perceived. The new voter-approved amendment prohibited any laws providing protections to gay citizens.
What did Colorado really stand for?
Do you remember the reaction? The fallout? The controversy?
Susan Berry Casey’s Appealing for Justice will take you back to the momentous case that grew out of the approval of Amendment 2. It will also give you a fascinating portrait of Jean Dubofsky, the woman who spearheaded the legal fight.
A full review follows. Susan Berry Casey (former Denver City Council member) was also kind enough to answer a few questions by email. (Check out her thoughtful commentary.)
Question: Well, I read your book before Nov. 9, 2016 and I’m writing these questions after that momentous date. I’m wondering about your thoughts about the results of the election, given your long involvement in public service, and also as that experience relates to one theme in Appealing for Justice, that one person can make a difference.
Susan Casey: In truth, the campaign and the election results have been a bit of a gut punch. Reliving the decades when blacks, women, the poor, and gays and lesbians had to fight for an equal and safe place in our society and seeing how far we’ve come reaffirmed my belief that gains in social justice have come from the efforts of ordinary people who “stand up for an ideal, work to improve the lot of others, strike out against injustice” (per Robert F. Kennedy). Being confronted with how much racism and sexism and hate still remains makes it much harder to believe, but hearing from people who have read the book and felt comforted and eager to join the continued fight for justice gives me hope again.
Question: Given all that’s happened with states acknowledging gay marriage since 1996, do you think there is any chance of going to back to those prehistoric times?
Susan Casey: I cannot conceive of the Court moving backwards in the short term. Romer v. Evans opened the Constitution’s equal protection clause to the LGBT community and the high Court has reaffirmed those protections three times, with Lawrence, then Windsor, and now Obergefell, the same sex marriage case. That is a lot of precedent for any new Court ruling to overcome. However, if new appointments to the Court change the ideological composition dramatically, then, in the coming decades, I fear that many of those hard fought gains could be overturned.
Question: One of the compelling threads in Appealing for Justice is how Jean Dubofsky had to prove her worth and talents over and over again and also how personal events shaped her career choices. Did you know these stories about the Topeka tornado or her father’s health before you started the research?
Susan Casey: I actually knew very little of Jean’s story when I began. But I was intrigued with the little that I did know her–that she had fought on behalf of others her whole life, had been involved in social justice causes through four decades, was a trailblazer for women, yet, at the same time she was subject to injustice and faced hurdles and challenges in her own life. As so often is the case, the experiences of ordinary people often tell us a truer story about history than the history that has been written from top down and I suspected that the combination of Jean’s experiences might help me shine a light on our country’s journey and our own journey. Her father’s mental illness, that her uncle was gay at a time when mental illness and homosexuality were hidden away, misunderstood, not spoken about, were other examples of injustice that she witnessed and experienced around her.
Question: Were you were aware, before you started writing and researching this book, that Jean had to repeatedly prove her talents?
Susan Casey: The two things I was aware of was that there was some kind of an uproar and backlash when she was appointed to the Colorado Supreme Court and that her brief time teaching at CU ended badly, with public outcry and accusations that sexual discrimination was at the root of what happened there. I had no idea about what really happened and it was not easy to get people to talk about what happened in each instance. The “witch hunt” after her court appointment, the pressures and hurdles to be overcome for any woman who is “the first”, and the turmoil at CU brought back painful memories for many people who were caught up in the swirl of what happened to Jean and it was hard for many to talk about those days.
That Jean always felt the pressure to prove herself over and over again, including on the court and as an accomplished appellant attorney, was not something even those closest to her fully understood. It took a long time and interviews with many people and digging through boxes and boxes of personal papers and news clippings to piece together these stories. Jean was so stoical in the telling of her own story. “It was tough but I was fine,” she would say. “It was just the way it was and you just had to keep going, put one foot in front of the other.”
Question: What drew you to Jean’s story? When did it first occur to you that this was a project that you wanted to pursue for all the years it must have taken? And why were you so determined to write Appealing for Justice?
Susan Casey: I wanted to explore the changes that have come for women over the decades, as part of the country’s broader journey of social justice. It was personal, in a way, because I grew up before women were allowed to be fully engaged outside the home and came of age as the women’s movement was gaining steam and opening doors. I had my own share of experiences and struggles along the way but had no interest in navel gazing about my own experiences. Instead, I thought of Jean, who had been one of the first women to help open those doors, and thought telling the story of those years of change through her experiences might allow for a telling of the evolution as an intimate and powerful narrative that would shine a light on the broader story of social justice. And I lucked out, because the intersections of her story with battles for civil rights, gay rights, women’s rights, and justice for the poor and forgotten were many and deep and extraordinary. The more I learned of her story and deeper I dug into stories of each of the movements, and how so many unsung heroes were at the heart of all the change that occurred over the decades, the more committed I became to telling this one untold story, both because of it’s own power but also on behalf of every other unsung hero who participated along the way.
Question: What was the most surprising thing you learned along the way about Jean or the whole long legal process behind Romer v. Evans?
Susan Casey: More than anything, I guess I was surprised at what a thin line there is between a case going in one direction or another, and how much history can shift and so many lives be affected. Actually, that pretty much sums up my take on this election. A tiny shift in the direction of wind and here we are about to make history…and not in a good way.
Question: Okay, one more question about the election. Women supported Hillary Clinton over Trump by 54 percent to 42 percent in 2016 but that’s about the same as the Democratic advantage among women in 2012 (55 percent for Obama) and 2008 (56 percent for Obama). Given that there was a woman at the topic of the ticket, were you surprised? And, as it relates to Jean’s story, what is it going to take for women to be treated equally as men in 2016 and beyond?
Susan Casey: Sadly, I was not surprised. In some ways I think many women resented being expected to be treated like sheep and just fall into line, and rightly so. But as we saw, all it takes it a little less enthusiasm, a few more voters staying home, a few more doubts planted, and a few more voters emboldened to hold on to old assumptions about a woman’s place in the world to shift one state or another into the column of the Republican side. I think in the near term, women are going to experience a bit of harder time because of the blatant misogyny during the past year. But over the longer term, I think we will continue to make progress. I have faith that the younger generation, men and women, are comfortable and appreciative of a culture that values women and girls in ways that Jean’s generation, and mine, did not.
Question: Do you have your biographer’s eyes turning to any other subjects? What’s next for you?
Susan Casey: I have some ideas and will begin to poke around a bit next spring and summer to see if there is a story that captures me deeply enough to let it move in and take over my life for a few years. But for now, as Jean’s story resonates with so many, I continue to be fascinated with and learn from all the new stories that I am hearing about those justice years, about how far we have come, and how far we have to go.
On BallotPedia (what a resource), the entry for 1992 Colorado ballot measures shows a green check mark next to Amendment 2, showing that the proposal passed. In fact, the proposal won with 53 percent of the votes. Amendment 2 would have banned laws prohibiting discrimination based on sexual orientation in Colorado.
At the time, three cities (Denver, Aspen and Boulder) had passed laws that prohibited such discrimination but statewide voters approved the idea of a constitutional amendment that would have made such laws illegal.
However, next to the green check mark is another tiny icon.
A brown gavel.
Appealing for Justice is the story of that brown gavel. That case was called Romer v. Evans. And not quite four years later (in May, 1996), a 6-3 decision by the U.S. Supreme Court decision wiped out the passage of Amendment 2. The language approved by Colorado voters, in fact, was ruled unconstitutional.
“We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else,” wrote Justice Anthony Kennedy, delivering the majority opinion. “This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws.”
It may seem now that such logic should be a given. (Given the national election results this month, however, what is?) What’s reassuring about reading Appealing for Justice is the notion that individuals can—and do—make a difference.
Smoothly written by former Denver City Councilwoman Susan Berry Casey, Appealing for Justice is an inspiring account of the case and the woman, Jean Dubofksy, who led the charge.
If you’ve been around Colorado for any length of time, reading the book also provides a meaty opportunity to think about how the cultural landscape has changed. The story also shines a light on a woman who did not get much of the spotlight as the case wound its way through the courts.
What a life. Jean Dubofsky’s story plays out against a half century of civil rights struggles. Raised in Kansas, she attended Stanford and then Harvard Law School. Dubofsky’s enlightenment about the plight of all minorities grew as she worked on civil rights cases in the South and also as she experienced discrimination as a woman seeking acceptance in man’s world, whether that was in law school itself or working as a legislative assistant to Senator Walter Mondale in 1968.
“The Senate was a stodgy place and there were many rules to be followed,” writes Casey. “When in the Senate chamber, for instance, staff members were required to kneel along the side wall in a certain manner: with one knee up and one knee down. ‘But with a short skirt on, you couldn’t kneel with one knee up and one down,’ Jean said. The sergeant-at-arms had little experience with dealing with women staffers kneeling in the Senate chambers and insisted that protocol was protocol, skirts or not. When Jean failed to persuade him that the archaic rules were not going to work anymore, she took the issue to her boss, Senator Mondale. Soon Jean was kneeling on both knees in the Senate chamber without being reprimanded by the sergeant-at-arms.”
This wasn’t Jean’s last fight. Hardly. She was appointed deputy Attorney General for Colorado in 1975 and, four years later, became the first female justice on the Colorado Supreme Court (the youngest person ever appointed, at age 37).
Dubofsky faced a series of tough challenges. She battled an ugly, false professional accusation. She made a difficult choice in balancing her career with family responsibilities. And she endured a nasty, brutal public relations fight over being denied tenure at the University of Colorado.
Over and over, Jean Dubofsky chose to go her own way. She pushed back in some cases, turned away in others. When it came time to set the strategy for the appeals over Amendment 2, she stuck firm with her belief that it would be the story of ordinary gay men and women who would end up winning the day. She stuck and stuck firm. She fought for her conviction that the case turned on proving that homosexuality was, in fact, immutable.
One goal of the Colorado Supreme Court hearing (before the case was appealed up to the U.S. Supreme Court) was to establish a thorough record about all aspects of the case. But a second goal, Casey writes, “was to provide everyone, from the presiding judge to the world at large, an education. The trial became an introductory course: Gays and Lesbians 101. And the world was watching. Literally, Court-TV was again in the courtroom and televised the trial live, gavel-to-gavel. For Jean, the trial was more than a legal case. It was an argument for society about social justice, and the key to winning that argument was education.”
The final showdown in the U.S. Supreme Court is a nifty narrative and Casey doesn’t waste the opportunity to demonstrate the stakes of the case or the tension in the room during oral arguments as the state attempted to defend the indefensible.
Appealing for Justice is an engaging, insightful read about an important figure in Colorado—and U.S.—history. It’s also, just as Jean Dubofsky might want it, an education. Recommended.