Romer v. Evans

To support gay rights, some Colorado communities, including Denver and Boulder, passed local ordinances that prohibited discrimination because of a person's sexual orientation. The ordinance applied to practices in employment, housing, and education. In 1992, a group called Colorado for Family Values felt they had to take a stand against the increasing legal tolerance of homosexuality. The group led an effort to amend the state constitution so the existing anti-discrimination laws would be repealed. Their proposed amendment would also prohibit any future attempts to protect the legal status of homosexuals based on their sexual orientation. In November, Colorado voters approved the ballot measure, known as Amendment 2.

Soon after the election, Richard Evans, a gay municipal worker in Denver, and other homosexuals, went to court to stop Amendment 2 from going into effect. The trial court issued a preliminary injunction, which the state appealed to the Colorado Supreme Court. The supreme court said the amendment denied gays the right to participate in the political process; the court supported the injunction and ordered the case back to the trial court. After hearing arguments, the trial court ruled that the state could not enforce the amendment, and the state supreme court once again upheld the lower court. The U.S. Supreme Court then agreed to hear the case.

The Court's membership had changed considerably in the ten years since the last major case addressing homosexual rights; only three sitting justices had heard Bowers v. Hardwick. In certain ways, some legal experts thought, the Court in 1996 was more conservative than it had been in 1986. But by a clear 6-3 majority, the Court ruled that Amendment 2 was unconstitutional, as it denied homosexuals their right to equal protection as guaranteed in the Fourteenth Amendment.

The state of Colorado had argued that Amendment 2 was merely taking back special rights that the local ordinances granted to homosexuals. Justice Kennedy, who wrote the decision, strongly disagreed:

We cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. 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 . . . We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.

Kennedy also noted that Amendment 2 failed to meet any "rational relationship to some legitimate end," a standard the Court had previously used in addressing issues of equal protection. Amendment 2, it seemed to him, was "born of animosity toward the class of persons affected."