In a statewide referendum in 1992, Colorado voters adopted ‘‘Amendment 2’’ to the state constitution. The impetus for the amendment was the adoption of legislation in various Colorado municipalities aimed at eliminating discrimination in housing, employment, education, and various forms of public accommodation on the basis of sexual orientation. The amendment effectively repealed these municipal ordinances and prohibited the enactment or official recognition of a ‘‘protected status’’ based on sexual orientation by the state or any of its political subdivisions. The Colorado Supreme Court enjoined enforcement of the amendment on the grounds that it impermissibly denied homosexuals the fundamental right to participate in the political process.
On appeal to the U.S. Supreme Court, the state argued that Amendment 2 merely restored the status quo ante—homosexuals would enjoy the same protections afforded other individuals, but no special protection based on their sexual orientation. In this way, according to the state, the amendment sought to respect the rights of citizens more broadly, including landlords and employers, who wished to refrain from associating with homosexuals. It would also allow the state to conserve its resources to combat other forms of discrimination.
The Court held that Amendment 2 violated the equal protection clause of the Fourteenth Amendment, failing to satisfy even the most deferential standard of constitutional review. Specifically, the broad scope of Amendment 2, spanning both the public and private spheres, was not commensurate with the meager rationales offered to support it. Instead, ‘‘its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects.’’ Thus, although homosexuals do not constitute a ‘‘suspect class’’ triggering heightened constitutional scrutiny, the Court could not discern even a rational relationship between Amendment 2 and a legitimate state interest. Moreover, far from restoring homosexuals to a position of equality with other citizens, the amendment imposed a ‘‘special disability’’ on homosexuals, uniquely denying them the means of legal and political redress available to other citizens. ‘‘A State cannot so deem a class of persons a stranger to its laws.’’
In a vigorous dissent, Justice Scalia chided the Court for taking sides in the culture wars. Where, as here, neither the Constitution nor historical tradition condemns the challenged provision, it is not the Court’s role to second-guess the value judgments of democratic decision makers. Further, Scalia noted the Court’s failure to reconcile its rejection of Amendment 2 with its earlier holding in Bowers v. Hardwick (1986), which permitted states to criminalize homosexual conduct. ‘‘If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct.’’ Indeed, because homosexuals would continue to be protected against discrimination by laws of general applicability, Amendment 2 merely placed them on equal footing with other citizens by denying them special treatment. In addition, Amendment 2 did not deny them access to the political process to any greater degree than other citizens unfavorably affected by duly enacted state constitutional provisions. Equal protection of the laws, including equal access to the political process, does not require that citizens be able to pursue their legislative agenda at the most local and accessible level of political decision making. Finally, despite the Court’s disapproving tone, the state was readily able to meet the burden of providing a legitimate justification for Amendment 2—the moral disapproval of homosexual conduct by a majority of Coloradans.
By deciding Romer on equal protection grounds, the Court was able to avoid a direct confrontation with its holding in Bowers that the criminalization of homosexual conduct is constitutionally permissible. In 2003, however, the Court revisited the question presented in Bowers. In Lawrence v. Texas, the Court invalidated a criminal prohibition on homosexual sodomy, invoking the substantive component of the due process clause of the Fourteenth Amendment. The Court noted that Romer’s equal protection analysis provided viable grounds for invalidating the Texas statute, but it determined that the rights of homosexuals would be better secured by a recognition of their fundamental right to privacy in intimate relationships. In this way, Romer was a key decision in the Court’s evolving jurisprudence of sexual privacy rights. Drawing on a handful of equal protection decisions that seemed to apply heightened constitutional scrutiny to legislation disadvantaging unpopular groups, including retarded persons and ‘‘hippies’’ living communally, Romer signaled the Court’s growing intolerance for laws it judges to be ‘‘born of animosity toward the class of persons affected.’’
References and Further Reading
Cases and Statutes Cited
See also Bowers v. Hardwick, 478 U.S. 186 (1986); Equal Protection of Law (XIV); Gay and Lesbian Rights; Privacy; Sodomy Laws; Substantive Due Process