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Romer v. Evans

    Brief Fact Summary. Colorado’s constitutional amendment “prevented the state or any of its cities from giving certain protections to gays or lesbians.”

    Synopsis of Rule of Law. Classifications of politically unpopular groups, such as homosexuals, are reviewed under a rational basis standard.

    Facts. Colorado amended its constitution by including a provision known as “Amendment 2” that prohibited the state from “enact[ing], adopt[ing] or enforc[ing], 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.” The Supreme Court of Colorado held that the state’s amendment was subject to strict scrutiny. Upon hearing the case again after remand, the Supreme Court of Colorado affirmed enjoined enforcement of the amendment.

    Issue. Whether the Colorado amendment unlawful discriminates against homosexuals and therefore, cannot withstand the rational basis standard.

    Held. Justice Anthony Kennedy (J. Kennedy). Yes. The Colorado amendment unlawfully discriminated against homosexuals because they where singled out. “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres.” The judgment was affirmed by upholding a rationale different than that expressed by the Supreme Court of Colorado.
    The state provides no rational reason for excluding homosexuals from protection of the laws.
    The amendment perpetuates discrimination of homosexuals. Colorado “cannot so deem a class of persons a stranger to its laws.”

    Dissent. Justice Antonin Scalia (J. Scalia). “The only denial of equal treatment [the Court] contends homosexuals have suffered is . . . [t]hey may not obtain preferential treatment without amending the state constitution. That is to say, the principle underlying the Court’s opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged “equal protection” violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal illness.”

    Discussion. State action “intend[ing] to harm the unpopular,” such as gays and lesbians, and not supported by a racial basis is unconstitutional.


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