ROMER v. EVANS 517 U.S. 620 (1996)

Adopted by referendum in 1992, Amendment 2 to the Colorado Constitution provided that no state entity could provide any protection against discrimination based on homosexuality. The scope of Amendment 2 was unclear. Certainly it partially repealed several gay-rights ordinances, invalidating their protections for homosexuals but not their protections for heterosexuals. Likely it also barred state entities from telling their employees not to deny services to gay citizens. It could be repealed only by another amendment to the Colorado Constitution. In Romer v. Evans (1996), the Supreme Court invalidated Amendment 2 as a violation of the federal equal protection clause.

Romer did not say that Amendment 2 unconstitutionally imposed electoral-process handicaps on a voting minority; or that sexual orientation is a suspect classification; or that bowers v. hardwick (1986) is bad law.

Instead, the six-Justice majority held that Amendment 2 violated the Constitution's guarantee of equal protection of the laws "in the most literal sense" because it denied a designated group equality in seeking aid from the government. Furthermore, Amendment 2 failed rational basis review because it was so sweeping and yet so ill-fitted to the single trait it identified that the Court refused to credit its asserted justifications (freedom of association and conservation of antidiscrimination resources). Amendment 2 showed "animus," a "bare … desire to harm an unpopular political group"—legislative purposes already ruled invalid in cases such as Department of Agriculture v. Moreno (1973) and cleburne v. cleburne living center, inc. (1985).

Justice antonin scalia (with Chief Justice william h. rehnquist and Justice clarence thomas) vehemently disagreed. Far from denying equal protection of the laws, Scalia said, Amendment 2 only barred state subdivisions from giving special rights to an insistent minority. Hardwick had held that a popular majority rationally expresses its disapproval of homosexuality by criminalizing homosexual sodomy; surely voters can elect instead the more tolerant terms of Amendment 2. Indeed, the majority's silence about Hardwick, and the complete lack of precedent supporting its theory of "literal" violation, show indifference to the rule of law, judicial will to usurp democratic processes, and elite contempt for popular moral views.

Romer raises more questions than it answers. Is Hardwickoverruled ? How far can government go in discriminating against homosexuals on the grounds of popular disapproval of them? When is antidiscrimination a "special right"? Does Amendment 2 exemplify the virtues or the dangers of direct democracy ? Who decides on controversial social control measures promoting the good life: localities, state legislatures, state plebescites, or federal courts enforcing the Constitution?

Janet E. Halley
(2000)

Bibliography

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Karlan, Pamela S. 1997 Just Politics?: Five Not So Easy Pieces of the 1995 Term. Houston Law Review 34:289–313.

Keen, Lisa and Goldberg, Suzanne 1998 Strangers to the Law: Gay People on Trial. Ann Arbor: University of Michigan Press.

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Sunstein, Cass R. 1996 Foreword: Leaving Things Undecided. Harvard Law Review 110:4–101.

Symposium 1997 Gay Rights and the Courts: The Amendment 2 Controversy. University of Colorado Law Review 68:285–452.