Romer v. Evans

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), is a landmark United States Supreme Court case dealing with civil rights and state laws. It was the first Supreme Court case to deal with LGBT rights since Bowers v. Hardwick (1986), when the Court ruled that laws criminalizing sodomy were constitutional.

Procedural History

In 1992, 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 gay and lesbian individuals as a protected class was passed by Colorado voters in a referendum. 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. The state trial court, upon remand, concluded that the amendment could not pass strict scrutiny, which the Colorado Supreme Court agreed with upon review. Upon appeal to the United States Supreme Court, the Court ruled in a 6-3 decision that the amendment did not even pass the rational basis test, let alone strict scrutiny. The decision in Romer set the stage for Lawrence v. Texas (2003), where the Court overruled its decision in Bowers, and for the Ninth Circuit appeal ruling in favor of Perry in Hollingsworth v. Perry (originally Perry v. Brown) in California, in 2012.

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 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.

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 that 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 a politically unpopular group".

Dissent

Justice Antonin Scalia wrote the dissent, joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas. Scalia characterized the law as "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." His objections included views 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, and argued that "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."
• The holding was difficult to reconcile with Davis v. Beason, 133 U.S. 333 (1890), and why §501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but Amendment 2 was an "impermissible targeting" of homosexuals, asking "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?"
• Arguing against what he saw as judicial activism and a "Kulturkampf" (culture war), he held that as the Constitution says nothing on the topic, it should be decided by democratic processes, and that "it [is] 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."

His dissent ends by opining that "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."

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 preempt. See Equality Foundation v. City of Cincinnati, 128 F. 3d 289. On October 13, 1998, the Supreme Court rejected an appeal, allowing the Sixth Circuit decision and the city amendment to stand. In 2004, Cincinnati voters overturned the amendment.

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; like the Romer case, Justices Kennedy and Scalia would author the majority and dissenting opinions in Lawrence with all nine justices voting almost the same way as in Romer (Justice O'Connor concurred, but with a different rationale) . Romer has been narrowly cited but influential within its niche, being cited in the cases of Lawrence v. Texas and Hollingsworth v. Perry - no doubt because Kennedy emphasized the "special" nature of Amendment 2 and refused to apply traditional rational-basis analysis to the Colorado law. Similarly, it was cited in the decision of Massachusetts Supreme Judicial Court case Goodridge v. Department of Public Health, wherein the Department’s desire to deny marriage licences to same-sex couples was explicitly likened to Amendment 2’s attempt to broadly restrict from seeking benefits a narrowly defined class of citizens.

In 2007, fifteen years after the referendum on Amendment 2, the Colorado legislature amended its anti-discrimination law by passing the Sexual Orientation Employment Discrimination Act (SOEDA), forbidding discrimination based sexual orientation and gender identity in employment. In 2008, Colorado further expanded its LGBT protections to include housing, public accommodation, and advertising.

Future Chief Justice John Roberts donated time pro bono to prepare oral arguments for the plaintiffs. Speaking during his nomination process, a case leader, Walter A. Smith Jr., praised his work on the case, recalling, "He said, 'Let's do it.' And it's illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job."

See also

• 1996 in LGBT rights
• Colorado for Family Values
• Compelling state interest
• List of United States Supreme Court cases, volume 517
• List of United States Supreme Court cases by the Rehnquist Court

Further reading

• Eskridge, William M., Jr. (2008). "The Supreme Court's Regime-Shifting Opinion in Romer v. Evans (1996)". Dishonorable Passions: Sodomy Laws in America 1861-2003. New York: Viking. pp. 278–289. ISBN 978-0-670-01862-8. 
• Gerstmann, Evan (1999). The Constitutional Underclass; Gays, Lesbians, and the Failure of Class-Based Equal Protection. Chicago: The University of Chicago Press. ISBN 0-226-28860-9. 
• 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 0-465-01513-1. 

External links

Works related to Romer v. Evans at Wikisource

• Text of Romer v. Evans, 517 U.S. 620 (1996) is available from: Justia · Findlaw ·  · LII

• The original Colorado Supreme Court decision