Romer v. Evans

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,, 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."