Romer v. Evans

Romer v. Evans, 517 U.S. 620 (1996), is a landmark decision of the Supreme Court of the United States case which held that a state constitutional amendment in Colorado preventing protected status based upon homosexuality or bisexuality violated the Equal Protection Clause . The majority opinion in Romer stated that the amendment lacked "a rational relationship to legitimate state interests", and the dissent stated that the majority "evidently agrees that 'rational basis'—the normal test for compliance with the Equal Protection Clause—is the governing standard".

The state constitutional amendment failed rational basis review .

Romer was the first Supreme Court decision to address gay rights since _Bowers v. Hardwick _ (1986), when the Court had upheld laws criminalizing sodomy as constitutional. The decision in Romer set the stage for three subsequent landmark decisions regarding LGBT civil rights: _Lawrence v. Texas _ (2003), where the Court overruled Bowers; _United States v. Windsor _ (2013), where the Court struck down Section 3 of the Defense of Marriage Act ; and _Obergefell v. Hodges _ (2015), where the Court struck down state bans on same-sex marriage. Justice Anthony Kennedy authored all four opinions, and was joined by Justices Ruth Bader Ginsburg and Stephen Breyer in each one.

Contents

• 1 Passage of Amendment 2

• 2 Proceedings in state court

• 3 U.S. Supreme Court ruling

• 4 Dissenting opinion

• 5 Scholarly commentary

• 6 Related cases and events

• 7 See also

• 8 References

• 9 Further reading

• 10 External links

Passage of Amendment 2

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Main article: 1992 Colorado Amendment 2

In 1992, Colorado voters approved by initiative an amendment to the Colorado state constitution (Amendment 2) that would have prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognize homosexuals or bisexuals as a protected class .

The amendment stated:

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.

That amendment was approved by a vote of 53% to 47%. According to public opinion surveys, Coloradans strongly opposed discrimination based upon sexual orientation, but at the same time they opposed affirmative action based upon sexual orientation, and the latter concern is what led to the adoption of Amendment 2.

The governor of Colorado, Roy Romer , opposed the measure, but also opposed retaliatory boycotts against his state.

Proceedings in state court

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Richard G. Evans, a gay man who worked for Denver mayor Wellington Webb , as well as other individuals and three Colorado municipalities, brought suit to enjoin the amendment. A former Colorado Supreme Court justice, Jean Dubofsky , was the lead attorney. A state trial court issued a permanent injunction against the amendment, and upon appeal, the Colorado Supreme Court ruled that the amendment was subject to "strict scrutiny " under the Equal Protection Clause of the federal Constitution .

The state trial court, upon remand , concluded that the amendment could not pass strict scrutiny, which the Colorado Supreme Court agreed with upon review. Both times, the Colorado Supreme Court rendered 2–1 decisions.

The state supreme court held that Amendment 2 infringed on the fundamental right of gays to participate equally in the political process. Regarding the trial court's finding that homosexuals were not a suspect class , the Colorado Supreme Court said: "This ruling has not been appealed and thus, we do not address it."

The majority of the Colorado Supreme Court acknowledged that Amendment 2 would not affect Colorado law that generally protects people from discrimination:

Colorado law currently proscribes discrimination against persons who are not suspect classes. ... Of course Amendment 2 is not intended to have any effect on this legislation, but seeks only to prevent the adoption of anti-discrimination laws intended to protect gays, lesbians, and bisexuals.

The dissenting justice on the Colorado Supreme Court argued that neither a suspect class nor a fundamental right was involved in the case, and thus he would have applied a rational basis test instead of strict scrutiny.

U.S. Supreme Court ruling

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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 from 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 . The Court majority held that the Colorado constitutional amendment targeting homosexuals based upon animosity lacked a rational relation to any legitimate governmental purpose.

Regarding the state's argument that Amendment 2 blocked homosexuals merely from receiving "special rights", Kennedy wrote:

Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary d

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