Romer v. Evans, 517 U.S. 620 

Supreme Court of the United States

1996

Chapter

5

Title

Equality and the Constitution

Page

666

Topic

The Problem of Sexual Orientation

Quick Notes

The Colorado provision, known as "Amendment 2," modified the Colorado constitution to provide that neither the state nor any subdivision (including state  agency, city or school district) shall "enact, adopt or enforce 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."

Rule

o         A law which nullifies all other laws which protect homosexuals could not possibly have been adopted for any purpose except the bare desire to discriminate against homosexuals, and therefore does not pass a rational-basis equal protection review.

Holding

o         Amendment 2 violated the Equal Protection clause of 14th amendment because the classification was unrelated to any legitimate state interest. Amendment 2 withdrew from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbid reinstatement of protective laws and policies. Amendment 2 thus classified homosexuals not to further a proper legislative end but to make them unequal to everyone else.

Book Name

Constitutional Law : Stone, Seidman, Sunstein, Tushnet.  ISBN:  978-0-7355-7719-0

Issue

o         Whether prohibiting laws that protect homosexuals from discrimination violate Equal Protection?  Yes.

Procedure

Trial

o         District court enjoined enforcement of an amendment to the Colorado Constitution.

Colorado

o         The State Supreme Court affirmed.

Supreme

o         Affirmed

Facts/Cases

Discussion

Key Phrases

Rules/Laws

Pl -   Romer (Governor)

Df -   Evans

Description

o         The Colorado provision, known as "Amendment 2," modified the Colorado constitution to provide that neither the state nor any subdivision (including state  agency, city or school district) shall "enact, adopt or enforce 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."

Justice Kennedy

Section II

States Arg

o         Amendment 2 puts gay and lesbians in the same position as all other person.

o         The measure does no more than deny homosexuals special rights.

Colorado State Supreme Court

o         Found the amendment invalid even on a modest reading of its implication.

Objective of the Amendment

o         The main practical impact of Amendment 2 was that it prevented both the state legislature and any city from passing statutes or ordinances that would protect gays and lesbians from discrimination

Prohibit other statutes, Unless first amended by

o         Only by amending the state constitution could gays obtain any protection against discrimination on the basis of sexual orientation.

Traits that cannot be the basis of discrimination - in recent times, sexual orientation

o         The laws of Colorado set forth an extensive catalogue of traits that cannot be the basis for discrimination, including age, military status, pregnancy, parenthood, custody of a minor child, political affiliation, physical or mental disability - and, in recent times, sexual orientation.

Consequences of Amendment 2 - Denies & nullifies protections

o         Amendment 2 denies to homosexuals the same protections that are extended to other groups.

o         It nullifies existing protections at all levels of government for this TARGETTED CLASS in all transactions in

o    Housing, sale of real estate, insurance, health and welfare services, private education, and employment.

Not confined to the private sphere

o         Repealed and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government.

o         Also repealed and forbidden are "various provisions prohibiting discrimination based on sexual orientation at state colleges."

Deprives of general laws

o         Broad Language deprives of general laws and policies that prohibit arbitrary discrimination.

 Court - We cannot accept view

o         We cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals  of special rights

Section III

Court - Does Amendment 2 burden or target a suspect class?

o         If a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.

Court - Amendment fails this inquiry.

1.     First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation.

2.     Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus [ill will] toward the class it affects; it lacks a rational relationship to legitimate state interests.

Point 1

What is the relation between the classification adopted and the object to be attained?

Link between classification and objective

o         The search for the link between classification and objective gives substance to the Equal Protection Clause.

Provides guidance to legislatures

o         It provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority.

Sustained if serves a legitimate Government Interest

o         In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous

Court - The law is too narrow and too broad

o         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.

Sweatt v. Painter

o         Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.

Court - This is a denial of equal protection

o         A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

Point 2

Court - The law is born of animosity toward the class of persons

o         This law raises the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.

Equal Protection - not legitimate government interest

Department of Agriculture v. Moreno

o         "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest

Court - this law does not bear a relational relationship to a legitimate government purpose.

o         Amendment 2 mak[es] a general announcement that gays and lesbians

o     shall not have any  particular protections from the law,

o    inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it.

States Primary Rationale

o         Respect for other citizens' freedom of association

o         Their liberties of landlords or employers who have personal or religious objections to homosexuality.

Court - No legitimate purpose

o         The breadth of the Amendment is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.

o         Class legislation is obnoxious to the prohibitions of the Fourteenth Amendment.

         Supreme Court of Colorado Affirmed.

DISSENT - Justice Scalia, Chief Justice Rehnquist, Justice Thomas

o         Not singling out

o         Inconsistent with Bowers

o         Not politically unpopular

o         Rationally related

Prohibits Special Treatment of homosexuals

o         Amendment 2 prohibits special treatment of homosexuals and nothing more

Preserve traditional sexual mores

o         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.

Constitution says nothing about this subject - Use democratic means

o         They should be able to do so through normal democratic means without their efforts being frustrated by unrepresentative members of this elite institution.

Section I

The amendment prohibits special treatment of homosexuals, and nothing more.

Not Affect a homosexual employee

o         A requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit.

Would Affect a life partner

o         But it would prevent the State or any municipality from making death-benefit payments to the "life partner" of a homosexual when it does not make such payments to the long-time roommate of a nonhomosexual employee

Our constitutional jurisprudence has achieved terminal silliness

o         Under Amendment 2, homosexuals may not obtain preferential treatment without amending the state constitution.

o         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 obtain preferential treatment under the laws, has been denied equal protection.

o         If merely stating this alleged "equal protection" violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.

Central Thesis

o         For whenever a disadvantage is imposed, or conferral  of a benefit is prohibited, at one of the higher levels of democratic decision making (i. e., by the state legislature rather than local government, or by the people at large in the state constitution rather than the legislature), the affected group has (under this theory) been denied equal protection

Section III

Eminent reasonableness

o         Although it is un-American to hate any human being or class of human beings, one could consider certain conduct reprehensible.

o    Murder, for example, or polygamy, or cruelty to animals -- and could exhibit even "animus" toward such conduct.

o         This is the same sort of "animus" at issue here

Bowers v. Hardwick

o         Moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.

o         If it is rational to criminalize conduct, then surely it is rational to deny special protections to those who engage in that conduct.

Court is saying polygamy must be permitted.

o         The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is "forever prohibited.

o    This was a condition of their admission into statehood.

o         The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local-option, basis -- unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.

Section IV

It is not business of the courts to take part in this cultural war.

It is preposterous to call homosexuality politically unpopular

o         Homosexuals have 4% of the population, but had 46% support of the voters on Amendment 2.

Prevent piecemeal deterioration

o         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.

Political Will

o         Striking it down is an act, not of judicial judgment, but of political will.

Analysis

Ration Review (Would go something like this)

o         Whether the proponent of the law can think of any plausible reason why the law might be legitimate, not what the legislature's actual reason was for adopting the law.

o         The claim that Amendment 2 would protect the freedom of association of landlords and employers should have been enough under rational review to sustain Amendment 2 against an equal protection challenge.

Scalia (Realizes this mistake)

o         As Justice Scalia points out, if criminalizing homosexuality is something that is rational enough to survive an equal protection challenge, then surely Amendment 2, which is not nearly as harsh as criminal sanctions, should be rational.

Rules

Rule

o         A law which nullifies all other laws which protect homosexuals could not possibly have been adopted for any purpose except the bare desire to discriminate against homosexuals, and therefore does not pass a rational-basis equal protection review.

Class Notes