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Romer v. Evans

Further Readings

Romer v. Evans, 517 U.S. 620, 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 farreaching 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."

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