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Romer v. Evans

    Citation. 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855, 1996 U.S. 3245.

    Brief Fact Summary. Colorado voters adopted Amendment two to their State Constitution, precluding the government from adopting measures that would protect homosexuals from discrimination. The state trial court enjoined enforcement of the act.

    Synopsis of Rule of Law. A bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.


    Facts. Amendment two was added to Colorado’s state constitution by a statewide referendum. It prohibited the state or local government from adopting measures that would protect homosexuals as a class from discrimination. The Respondents, Evans and others (Respondents), argued that Amendment two did nothing more than deny homosexuals special rights. The stated purpose of the amendment was to prevent the deterioration of the sexual morality favored by most Coloradans. The state trial court permanently enjoined enforcement Amendment two. The Colorado Supreme Court affirmed on the trials court’s decision.

    Issue. Did Amendment two violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution)?

    Held. Yes. The judgment of the Supreme Court of Colorado is affirmed.
    Justice Anthony Kennedy stated that Amendment two relegates homosexuals to a solitary class and withdraws from them, but no others, legal protections arising from discrimination. Its reach includes the State’s public accommodation laws, as well as laws prohibiting discrimination in the housing, insurance and education markets. A law making it more difficult for one group of citizens to seek assistance from the government than another is a denial of the Equal Protection of the laws in the most literal sense (i.e. the means do not fit whatever ends sufficiently to pass rational basis review).
    Moreover, the means of Amendment two are so broad in relation to its ends (to prevent the deterioration of sexual morality) that we cannot credit them. The Supreme Court of the United States (Supreme Court) is left with the conclusion that Amendment two constitutes a classification for its own sake. “Class legislation is obnoxious to the Fourteenth Amendment.” (i.e., the ends are illegitimate).

    Dissent. Justice Antonin Scalia (J. Scalia) states that the majority in this opinion is essentially saying that one who is accorded equal treatment under the laws, but cannot as readily achieve preferential treatment is one who is not accorded equal treatment and that this line of reasoning is silly. J. Scalia also adds that discrimination of the basis of sexual orientation is subject to rational basis review. He cites Bowers v. Hardwick (upholding the criminal law of a State prohibiting homosexual conduct) for this proposition and says that since Amendment 2 was designed to prevent the gradual decline of sexual morality favored by most Coloradans, Amendment 2 is an appropriate means to a legitimate ends and therefore constitutional.

    Discussion. At the time this case was decided (Bowers v. Hardwick), making homosexual conduct criminal, was still good law. As such, one would think that Bowers would be sufficient to establish the ends of Amendment two as rational. The Supreme Court has invalidated Amendment two under rational basis review, however. This case, thus, gives rise to the inference that the Supreme Court in fact applies a higher standard of review than rational basis for cases involving discrimination based on sexual orientation.

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