Caseflicks

Supreme Court of the United States • 1996

Romer v. Evans

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

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Takeaway

In short, Romer holds that even rational-basis review invalidates a law that broadly singles out gays and lesbians for exclusion from ordinary legal protections without a legitimate governmental purpose.

Background

Colorado voters adopted Amendment 2 to the state constitution in 1992. The amendment repealed existing state and local measures that prohibited discrimination based on homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships. It also barred every level of Colorado government from adopting or enforcing future measures that would treat those characteristics as a basis for protected status or a discrimination claim.

Gay and lesbian Coloradans, along with municipalities that had adopted sexual-orientation antidiscrimination ordinances, sued the Governor, Attorney General, and State. They alleged that Amendment 2 exposed them to discrimination and denied them equal protection. The trial court preliminarily enjoined enforcement. The Colorado Supreme Court affirmed and later held the amendment unconstitutional, reasoning that it impermissibly burdened gays' and lesbians' participation in the political process and could not survive strict scrutiny. The U.S. Supreme Court affirmed the judgment, but on rational-basis equal-protection grounds rather than the state court's political-process rationale.

Issues

Issue #1

Whether Amendment 2 merely denied gays and lesbians “special rights,” rather than imposing a distinct legal disability on them.

Holding

No. Amendment 2 imposed a broad, unique disability on homosexual persons by withdrawing existing protections and preventing them alone from seeking specific legal protection against discrimination through ordinary state and local political processes.

Reasoning

The Court accepted the Colorado Supreme Court's authoritative interpretation of Amendment 2. On even that relatively modest interpretation, the amendment repealed existing protections against sexual-orientation discrimination in housing, employment, public accommodations, insurance, education, and government employment, and it prohibited future enactment of comparable protections unless the state constitution were amended first.

Colorado's antidiscrimination laws used enumerated categories to make a general duty not to discriminate concrete and enforceable. Sexual orientation was one of many characteristics included in local and state protections; it was not an unusual privilege or quota. Amendment 2 removed the ability of homosexual persons, and no other group, to obtain this ordinary kind of targeted legal protection.

The amendment therefore did more than leave gays and lesbians subject to the same generally applicable laws as everyone else. It made them a solitary class: no matter how local, serious, or widespread the discrimination, they could seek specific governmental protection only by securing a statewide constitutional amendment. The Court regarded that selective exclusion from ordinary political and legal remedies as a special disability.

Issue #2

Whether Amendment 2 violated the Equal Protection Clause of the Fourteenth Amendment.

Holding

Yes. Amendment 2 lacked a rational relationship to a legitimate state interest and therefore violated the Equal Protection Clause.

Reasoning

The Court did not hold that homosexual persons are a suspect or quasi-suspect class, and it did not rely on strict scrutiny or a fundamental right to participate in the political process. Instead, it applied the conventional rational-basis rule: a classification that burdens neither a fundamental right nor a suspect class must bear a rational relation to a legitimate governmental purpose.

Even under that deferential standard, Amendment 2 was constitutionally defective because of its unusual breadth. It identified one group by a single trait and broadly barred that group from obtaining specific protection from discrimination throughout state and local government. That sweeping disqualification was far broader than ordinary legislation that classifies persons to address a defined problem.

Rational-basis review requires some discernible connection between a law's classification and an independent, legitimate objective. Amendment 2's breadth was so disconnected from Colorado's asserted interests that it could not plausibly be understood as a measured effort to advance those interests. Rather, its structure raised the inference that the disadvantage imposed on gays and lesbians was itself the law's object.

Colorado invoked the freedom of association of landlords and employers with personal or religious objections to homosexuality, as well as an interest in conserving resources to combat discrimination against other groups. The Court concluded that a statewide ban on every specific protection for gays and lesbians was far too broad and indiscriminate to be rationally tailored even in the loose sense required by rational-basis review.

A bare desire to harm a politically unpopular group is not a legitimate governmental interest. By making homosexual persons strangers to protections that others either enjoyed or could seek through ordinary political channels, Amendment 2 classified them to make them unequal rather than to further a proper governmental end. Colorado therefore could not enforce it.

Dissents

Justice Scalia

Reasoning

Justice Scalia argued that the Court mistook a democratic conflict over sexual morality for unconstitutional hostility toward homosexual persons. In his view, Amendment 2 did not impose substantive discrimination; it simply prevented state and local governments from granting homosexual conduct or orientation special antidiscrimination protections. General laws protecting all persons from arbitrary treatment, he maintained, remained available to homosexual individuals on equal terms.

He rejected the majority's conclusion that requiring one group to seek relief through a state constitutional amendment, rather than through local or ordinary legislative action, denied equal protection. In a multilevel democracy, he argued, state constitutional provisions regularly restrict what local governments and legislatures may do. A higher-level policy decision does not become constitutionally suspect merely because those who oppose it face a more difficult political process to change it.

Scalia maintained that Bowers v. Hardwick, which then permitted states to criminalize homosexual conduct, established at least a rational basis for measures less severe than criminalization. If a state could constitutionally disapprove of and criminalize homosexual conduct, he reasoned, it could also decline to extend special legal protections based on that conduct or on an orientation associated with it.

He also argued that Colorado had a rational democratic purpose: preserving traditional sexual mores against local efforts to confer official approval on homosexuality. In his view, moral disapproval of conduct is not the same as a bare desire to harm persons, and the Court improperly treated one side of a cultural and political dispute as constitutionally illegitimate.

Finally, Scalia invoked state constitutional provisions directed at polygamy and the Court's older decision in Davis v. Beason to argue that constitutional law had long permitted governments to single out practices thought socially harmful. He concluded that the majority created a novel constitutional doctrine to override Colorado voters' policy judgment and improperly took sides in a culture war.