Romer v. Evans

517 U.S. 620 (1996), argued 10 Oct. 1995, decided 20 May 1996 by vote of 6 to 3; Kennedy for the Court, Scalia, Rehnquist, and Thomas in dissent. As more and more gay people came out of the closet in the 1980s and 1990s, the question of their constitutional status became at once more important and more conflicted. Unlike other groups, such as African‐Americans, the Supreme Court had refused to treat gays as a specially protected “suspect” class under the Constitution. In Bowers v. Hardwick (1986), the justices had refused to overturn a Virginia law that criminalized homosexual sex. Homosexuals nonetheless enjoyed greater public visibility, yet that same visibility brought them into direct conflict with various Christian and family groups that condemned same‐sex relations.

The contrast between traditional sexual practices and the gay lifestyle was particularly striking in Colorado, a state whose history as part of the Old West collided with the liberal enclaves of Boulder, Aspen, and Denver. These liberal municipalities passed ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities. In response to these measures, “family values” and fundamentalist religious groups successfully sponsored a statewide referendum—Amendment 2 to the Colorado constitution—that precluded all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their sexual orientation and lifestyle. A coalition of gay action groups, liberal religious organizations, the American Civil Liberties Union, and the National Association for the Advancement of Colored People persuaded first a trial court and then the Colorado Supreme Court to enjoin Amendment 2 on the grounds that it violated the Equal Protection Clause of the Fourteenth Amendment. The state of Colorado, through the agency of its governor, Roy Romer, then appealed to the United States Supreme Court.

The state argued that Amendment 2 did not discriminate against gays but instead simply removed special rights for them that did not apply to other groups. Moreover, since the voters of Colorado had spoken on the issue, the high court was bound to respect the peoples' judgment, especially since the measure followed the common practice of giving state governments broad authority over cities and municipalities. If there was a need for special protection of homosexuals, that protection should come from the state level.

Critics of Amendment 2 denounced it on constitutional grounds as an unacceptable act of discrimination that denied a specific category of people the protection of the laws. In short, counsel for Richard Evans, a gay activist and the coordinator of Denver's HIV resource program, argued that Colorado had failed to show any legitimate objective for this act of discrimination other than demonstrating that a majority of state residents disliked gay people.

Justice Anthony M. Kennedy's majority opinion supported the Colorado Supreme Court in striking down Amendment 2. Kennedy turned to two sources to make his argument. The first was Justice John Marshall Harlan, whose famous dissent in Plessy v. Ferguson (1896) held that “the Constitution neither knows nor tolerates classes among citizens” (p. 625). The Colorado amendment, Kennedy continued, had no rational or proper legislative purpose; instead, it was designed to “make them [gays] unequal to everyone else” (p. 646). Kennedy, however, avoided establishing homosexuals as a specially protected class, similar to the status accorded blacks. He did so by relying on a brief filed by Harvard Law professor Lawrence Tribe, who had a decade before unsuccessfully argued the case of Bowers v. Hardwick. Tribe told the Court that it did not need to address the issue of special status for gays, since Amendment 2 was a rare example of a per se violation of the Equal Protection Clause of the Fourteenth Amendment. The fact that the other justices in the majority signed on to the opinion, rather than writing concurring opinions, underscored the effort by the majority to demonstrate a unified front over a contentious issue.

The dissenters, however, were blistering in denouncing the majority's actions. Justice Antonin Scalia, for example, argued that the case was merely another incident in the cultural wars, one in which the majority of the people of Colorado were within their constitutional rights to try and “preserve traditional sexual mores. … The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals.” (p. 647).

Romer was a significant victory for gay rights and something of a defeat for states' rights advocates, who had enjoyed strong support from the Rehnquist Court. Most important, however, the majority concluded that the creation of so‐called special rights for gays, which prevented discrimination against them, was really just another manifestation of equal rights, to which all persons were entitled. As a result, the decision makes it more difficult for governments at all levels to single out a particular population for a “special burden.”

— Kermit L. Hall

Romer v. Evans (Roy Romer, Governor of Colorado et al., v. Richard G. Evans et al., 517 U.S. 620, 1996). In 1992 Colorado citizens voted to adopt an amendment to the state constitution known as Amendment 2 that repealed all local ordinances banning discrimination on the basis of Sexual Orientation. Amendment 2 also prohibited all state or local governmental actions designed to protect homosexual persons from discrimination. Soon after the amendment's adoption, municipalities that had adopted protective ordinances and various individual plaintiffs challenged it. A state trial court enjoined the enforcement of Amendment 2, and the Colorado Supreme Court affirmed. In Romer v. Evans, the U.S. Supreme Court affirmed by a 6–3 vote, holding that Amendment 2 violated the equal protection clause of the U.S. Constitution.

Justice Anthony Kennedy's opinion for the Court was surprising in that it struck down Amendment 2 while applying only "rational basis" scrutiny, the lowest level of constitutional review under the equal protection clause and a level of review that is ordinarily quite deferential. The Court held that Amendment 2 imposed special disabilities on homosexuals, that these disabilities were animated by "animosity" toward the class, and that animosity cannot itself be a "legitimate governmental interest." As the Court held, "a State cannot so deem a class of persons a stranger to its laws." The Court thus did not reach the question of whether to classify homosexuals as a "suspect class," making discrimination against them subject to heightened scrutiny.

Justice Antonin Scalia, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, wrote a biting dissent. Scalia argued that the Court's decision was directly contradicted by Bowers v. Hardwick, 478 U.S.186 (1986), which held that the Constitution does not prohibit states from making homosexual conduct a crime.

Bibliography

Rotunda, Ronald D., and John E. Nowak. Treatise on Constitutional Law: Substance and Procedure. 3d ed. Volume 3. St. Paul, Minn.: West, 1999.

Romer v. Evans, ___U.S. ___ , 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), is a landmark and controversial decision, in which the U.S. Supreme Court declared unconstitutional an amendment to the Colorado state constitution that prohibited state and local governments from enacting any law, regulation, or policy that would, in effect, protect the civil rights of gays, lesbians and bisexuals.

The amendment at issue in Romer v. Evans, known as Amendment 2, was placed on the November 1992 ballot following a petition drive. The amendment provided in part that neither the state nor any of its political subdivisions "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 or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination."

The amendment was immediately challenged in state court by eight individuals and the cities of Denver, Boulder, and Aspen, which had gay rights ordinances in effect. They sued Governor Roy Romer, Attorney General Gale Norton, and the State of Colorado. The plaintiffs argued that the amendment violated their First Amendment right to free expression and their Fourteenth Amendment right to equal protection of the laws. They obtained a permanent injunction in state court that prevented the amendment from going into effect.

In 1994 the Colorado Supreme Court affirmed the trial court (Evans v. Romer, 882 P.2d. 1335). The court applied the strict scrutiny standard in analyzing the amendment. This standard, which is the most exacting under the Equal Protection Clause, is reserved for laws or amendments that discriminate against members of traditionally suspect classes (race, alien status, national ancestry, and ethnic origin). Laws will be upheld under strict scrutiny if they are supported by a compelling state interest and are narrowly drawn to achieve that interest in the least restrictive manner possible.

Reviewing a series of U.S. Supreme Court decisions involving voter registration, legislative apportionment, and attempts to limit the ability of certain groups to have legislation implemented through the normal political processes, the court found a common thread. The Equal Protection Clause guarantees the fundamental right to participate equally in the political process. Therefore, any attempt to infringe on that right "must be subject to strict scrutiny and can be held constitutionally valid only if supported by a compelling state interest." Where the effect of a law is to exclude a class of voters, strict scrutiny must be used.

The Colorado Supreme Court found that the ultimate result of Amendment 2 was to prohibit any legislation dealing with sexual orientation unless the state constitution was first amended to permit such measures. Unlike all other citizens, who could seek legislative redress, gays and lesbians would have to first amend the state constitution by a majority vote. Thus, the amendment singled out one form of discrimination and prevented one class of persons from using normal political processes to overturn the discrimination. This discrimination, coupled with the state's failure to offer any compelling state interests that would justify the enactment of Amendment 2, led the court to invalidate the amendment.

On appeal to the U.S. Supreme Court, Colorado argued that the amendment put gays and lesbians in the same position as all other persons and merely denied homosexuals special rights. Justice Anthony Kennedy, in his majority opinion, rejected this interpretation as implausible. Relying on the Colorado Supreme Court's reading of the amendment, Kennedy quoted a passage that noted that Amendment 2 would have forced the "repeal of existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation." The enforcement of the amendment would lead to sweeping and comprehensive changes that, in Kennedy's view, put homosexuals "in a solitary class with respect to transactions and relations in both the private and governmental spheres."

These modifications would produce far-reaching changes in the legal status of gays and lesbians and the structure and operation of modern anti-discrimination laws. Kennedy pointed out that the Boulder and Denver anti-discrimination ordinances prohibited discrimination on account of sexual orientation in places of public accommodation, which include hotels, restaurants, hospitals, dental clinics, theaters, banks, common carriers, travel and insurance agencies, and shops and stores that deal with goods and services. In addition, Amendment 2 would remove anti-discrimination protections for all transactions involving housing, the sale of real estate, insurance, health and welfare services, private education, and employment.

Based on this analysis of the potential reach of Amendment 2, Kennedy concluded that the amendment went well beyond merely depriving gays and lesbians of special rights. The amendment imposed a "special disability upon those persons alone." The only way homosexuals could obtain civil rights protection under Colorado law would be to convince enough citizens to vote to amend the state constitution. The kinds of protections that Amendment 2 would take away were those "against exclusion from an almost limitless number of transactions and endeavors that constitute civic life in a free society."

The key question for the Court was whether the amendment violated the Fourteenth Amendment's Equal Protection Clause, which promises that no person shall be denied the equal protection of the laws. In equal protection cases, the Court will uphold a legislative classification if it neither burdens a fundamental right nor targets a suspect class, and if it bears a rational relation to some legitimate end. In Romer this type of inquiry broke down, because the amendment was both too narrow and too broad. It imposed "a broad and undifferentiated disability on a single named group," and the "sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests."

Justice Kennedy viewed the disqualification of gays and lesbians from the right to obtain specific protection from the law as unprecedented and a denial of equal protection "in the most literal sense." Reflecting on the constitutional tradition, he concluded that the idea of the rule of law and the guarantee of equal protection were based on "the principle that government and each of its parts remain open on impartial terms to all who seek its assistance."

The Court drew from Amendment 2 "the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." The desire to harm a politically unpopular group can never be a legitimate government interest. Colorado's primary justification for the amendment was respect for other citizens' freedom of association, especially landlords or employers who have personal or religious objections to homosexuality. Kennedy concluded that the amendment's breadth was too far removed from this justification. Amendment 2 was a "status-based enactment divorced from any factual context from which we [the Court] could discern a relationship to legitimate interests." In light of the serious deficiencies in the amendment's scope and the failure of the state to articulate a legitimate state interest, the Court ruled that Amendment 2 violated the Equal Protection Clause.

Justice Antonin Scalia, in a dissenting opinion joined by Chief Justice William Rehnquist and Justice Clarence Thomas, characterized Amendment 2 as "rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws." He criticized the majority for "imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected." Noting that the U.S. Constitution does not deal with sexual orientation, Scalia concluded that states should be permitted to resolve these kinds of issues through "normal democratic means, including the democratic adoption of provisions in state constitutions."

See: gay and lesbian rights.

Romer v. Evans
Supreme Court of the United States
Argued October 10, 1995 Decided May 20, 1996
Full case name	Roy Romer, Governor of Colorado, et al. v. Richard G. Evans, et al.
Citations	517 U.S. 620 (more) 116 S. Ct. 1620; 134 L. Ed. 2d 855; 1996 U.S. LEXIS 3245; 64 U.S.L.W. 4353; 70 Fair Empl. Prac. Cas. (BNA) 1180; 68 Empl. Prac. Dec. (CCH) P44,013; 96 Cal. Daily Op. Service 3509; 96 Daily Journal DAR 5730; 9 Fla. L. Weekly Fed. S 607
Prior history	Preliminary injunction granted to plaintiffs, 1993 WL 19678 (Colo. Dist.Ct. 1993); affirmed, 854 P.2d 1270 (Colo. 1993); certiorari denied, 510 U.S. 959 (1993); injunction made permanent, 1993 WL 518586 (Colo. Dist.Ct. 1993); affirmed, 882 P.2d 1335 (Colo. 1994); certiorari granted, 513 U.S. 1146 (1995)
Subsequent history	None
Holding
An amendment to the Colorado Constitution that prevents protected status under the law for homosexuals or bisexuals was struck down because it was not rationally related to a legitimate state interest. Supreme Court of Colorado affirmed.
Court membership
Chief Justice William Rehnquist Associate Justices John P. Stevens · Sandra Day O'Connor Antonin Scalia · Anthony Kennedy David Souter · Clarence Thomas Ruth Bader Ginsburg · Stephen Breyer
Case opinions
Majority	Kennedy, joined by Stevens, O'Connor, Souter, Ginsburg, Breyer
Dissent	Scalia, joined by Rehnquist, Thomas
Laws applied
U.S. Const. amend. XIV; Colo. Const. art. II, § 30b

Romer v. Evans, 517 U.S. 620 (1996), was a United States Supreme Court case dealing with civil rights and state laws. The Court gave its ruling on May 20, 1996 against an amendment to the Colorado state constitution that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to protect homosexual citizens from discrimination on the basis of their sexual orientation.

Contents 1 History 2 The U.S. Supreme Court ruling 3 Dissent 4 Notes 5 See also 6 Further reading 7 References 8 External links

History

On November 3, 1992, Colorado voters, with a vote of 53.4 percent, enacted "Amendment 2", which read:

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 any 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 drafted and promoted by the organization Colorado for Family Values, and it would have effectively prevented any laws banning discrimination against gays, and thereby nullified gay rights laws that already existed in Aspen, Denver, and Boulder.

An immediate legal challenge was launched by gay rights groups. On January 15, 1993 the groups were granted a temporary injunction from 2nd District Court Judge Jeffrey Bayless preventing Amendment 2 becoming part of the state constitution, on the grounds of its possible unconstitutionality and possible irreparable harm that would be caused by its implementation. The court scheduled a trial to decide the case.

Before the trial could begin, the state appealed to the Colorado Supreme Court. On July 19, 1993, that court upheld the original injunction, on the grounds that Amendment 2 violated the equal protection clause of the Fourteenth Amendment to the United States Constitution, insofar as Amendment 2 denied gays equal rights to normal political processes. Chief Justice Luis Rovera wrote:

Were Amendment 2 in force [...] the sole political avenue by which this class could seek such protection [against discrimination] would be through the constitutional amendment process.

The state Supreme Court demanded that the legislation face "strict scrutiny" and prove that it advanced a "compelling state interest", and returned the case to the District Court for trial. Judge Bayless found that the amendment failed the test, and ruled it unconstitutional on December 14, 1993.

Colorado appealed to the State Supreme Court, which affirmed the District Court's decision on October 11, 1994, and appealed to the U.S. Supreme Court.

The U.S. Supreme Court ruling

The case was argued on October 10, 1995. On May 20, 1996, the court ruled 6-3 that Colorado's Amendment 2 was unconstitutional, though on different reasoning than the Colorado courts. Justice Anthony Kennedy wrote the majority opinion, and was joined by John Paul Stevens, Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Rejecting the state's argument that Amendment 2 merely blocked gay people from receiving "special rights", Kennedy wrote:

To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.

Kennedy argued that protection offered by antidiscrimination laws was not a "special right" because they protected fundamental rights already enjoyed by all other citizens. Though antidiscrimination laws "enumerated" certain groups which they protected, this merely served to put others on notice (i.e., the enumeration was merely declaratory).

Instead of applying "strict scrutiny" to Amendment 2 (as Colorado Supreme Court had required) Kennedy wrote that it did not even meet the much lower requirement of having a rational relationship to a legitimate government purpose:

Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

And:

[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.

Kennedy did not go into depth in rejecting the claims put forward in support of the law (protecting the rights of landlords to evict gay tenants if they found homosexuality morally offensive, etc.) because he held that the law was so unique as to "confound this normal process of judicial review" and "defies...conventional inquiry." This conclusion was supported by his assertion that "It is not within our constitutional tradition to enact laws of this sort." Finding that "laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected," the Court implied that the passage of Amendment 2 was born of a "bare...desire to harm" homosexuals.

Dissent

Justice Antonin Scalia wrote a dissent which was joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas. Scalia wrote:

[Amendment 2 is] a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are [...] unimpeachable under any constitutional doctrine hitherto pronounced.

Scalia argued that Amendment 2 did not deny homosexuals access to the political process but merely made it more difficult to enact laws that they favored. He noted that the majority's result stood in flat contradiction to the court's earlier decision in Bowers v. Hardwick, 478 U.S. 186 (1986), in which it had ruled that laws outlawing sodomy are not unconstitutional. That was based on the fact that Bowers had rejected a rational-basis challenge to sodomy laws on the grounds that traditional moral disapproval furnished such a rational basis. Scalia noted:

If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct.

Justice Scalia also asked how the holding of the majority could be reconciled with Davis v. Beason, 133 U.S. 333 (1890):

"remains to be explained how §501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not?"

Against what he saw as judicial activism, he wrote:

Since the Constitution of the United States says nothing about this subject [homosexuality], it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions.

Justice Scalia stated that the Court should take no part in what is termed the "culture war". After quoting a passage from Murphy v. Ramsey, 114 U.S. 15 (1885) which had praised governmental favouring of heterosexual monogamy, Justice Scalia wrote the following:

"I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war. But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes."

The dissent ends as follows:

"Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent."

Notes

In 1993, Cincinnati, Ohio passed Ballot Issue 3, an amendment to the city charter which forbade the city from adopting or enforcing civil rights ordinances based on sexual orientation, the only municipality in the United States to pass such a restriction. The wording of Cincinnati's amendment was almost identical to that of Colorado's. The amendment was upheld by the Sixth Circuit Court of Appeals in 1996 but remanded by the Supreme Court for further consideration in 1997 in the wake of the Romer decision. The Sixth Circuit upheld the amendment a second time, differentiating it from the state-level amendment on the grounds that it was a local government action of the type that Amendment 2 was designed to pre-empt. On October 13, 1998, the Supreme Court rejected an appeal, allowing the Sixth Circuit decision and the city amendment to stand.^[1] In 2005, Cincinnati voters overturned the amendment.^[2]

Since Romer stood in obvious tension with the Court's earlier decision in Bowers v. Hardwick, 478 U.S. 186 (1986), it laid the groundwork for 2003's Lawrence v. Texas, 539 U.S. 558 (2003), which overturned Bowers. Romer, however, has not been widely cited beyond Lawrence, no doubt because Kennedy emphasized the "special" nature of Amendment 2 and refused to apply traditional rational-basis analysis to the Colorado law.

In this case, the court lined up in almost the same way as in Lawrence, though in Lawrence Justice O'Connor concurred in the judgment on different grounds.

Ironically, although Roy Romer was on record as opposing Amendment 2, his name was on the suit as defendant and the appellant solely due to his position as governor of Colorado.

In 2007, fifteen years after the referendum on Amendment 2, a law was passed that banned discrimination based on sexual orientation and gender identity for all employers in Colorado.

See also

• List of United States Supreme Court cases, volume 517

Further reading

• Hasian, Marouf A., Jr.; Parry-Giles, Trevor (1997). "‘A Stranger to Its Laws’: Freedom, Civil Rights, and the Legal Ambiguity of Romer v. Evans". Argumentation and Advocacy 34: 27–42. ISSN 10511431. 
• Murdoch, Joyce; Price, Deb (2001). "The Constitution 'Neither Knows nor Tolerates Classes among Citizens'". Courting Justice: Gay Men and Lesbians v. the Supreme Court. New York: Basic Books. ISBN 0465015131. 

References

1. ^ Irwin, Julie (1998-10-14). "Law denying gay protection stands". The Cincinnati Enquirer. http://www.enquirer.com/editions/1998/10/14/loc_gayrights14.html. Retrieved on 2009-01-03. 
2. ^ "Cincinnati gay rights amendment passes". Business Courier of Cincinnati. 2006-03-15. http://cincinnati.bizjournals.com/cincinnati/stories/2006/03/13/daily40.html. Retrieved on 2009-01-03. 

External links

• Works related to Romer v. Evans at Wikisource
• Text of Romer v. Evans, 517 U.S. 620 (1996) is available from:  · Enfacto · Findlaw · LII

• The original Colorado Supreme Court decision

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