Romer v. Evans: Supreme Court Case, Arguments, Impact

Civil Rights, Sexual Orientation, and the U.S. Constitution

Demonstrators rally for LGBT rights
Demonstrators in favor of LGBT rights gather outside of the U.S. Supreme Court on October 8, 2019 in anticipation of three workplace discrimination cases involving sexual orientation being heard by the justices.

 Saul Loeb / Getty Images

Romer v. Evans (1996) was a landmark U.S. Supreme Court decision that dealt with sexual orientation and the Colorado State Constitution. The Supreme Court ruled that Colorado could not use a constitutional amendment to abolish laws prohibiting discrimination based on sexual orientation.

Fast Facts: Romers v. Evans

Case Argued: October 10, 1995

Decision Issued: May 20, 1996

Petitioner: Richard G. Evans, an administrator in Denver

Respondent: Roy Romer, Governor of Colorado

Key Questions: Amendment 2 of the Colorado Constitution abolished anti-discrimination statutes that prohibit discrimination based on sexual orientation. Does Amendment 2 violate the Equal Protection Clause of the Fourteenth Amendment?

Majority: Justices Kennedy, Stevens, O'Connor, Souter, Ginsburg, and Breyer

Dissenting: Justices Scalia, Thomas, and Clarence

Ruling: Amendment 2 violates the Equal Protection Clause of the Fourteenth Amendment. The amendment invalidated existing protections for a specific group of people and could not survive strict scrutiny.

Facts of the Case

Leading up to the 1990s, political groups advocating for gay and lesbian rights had made progress in the state of Colorado. The legislature had repealed its sodomy statute, ending the criminalization of homosexual activity throughout the state. Advocates had also secured employment and housing protections in a number of cities. In the midst of this progress, socially conservative Christian groups in Colorado began to gain power. They opposed the laws that had been passed to protect LGBTQ rights and circulated a petition which gained enough signatures to add a referendum to the November 1992 Colorado ballot. The referendum asked voters to pass Amendment 2, which aimed to prohibit legal protections based on sexual orientation. It provided that neither the state nor any government entity, “shall enact, adopt or enforce any statute, regulation, ordinance or policy" that allows people who are "homosexual, lesbian or bisexual" to "have or claim any minority status, quota preferences, protected status or claim of discrimination."

Fifty-three percent of Colorado voters passed Amendment 2. At the time, three cities had local laws that were impacted by the amendment: Denver, Boulder, and Aspen. Richard G. Evans, an administrator in Denver, sued the governor and state over the passage of the amendment. Evans was not alone in the suit. He was joined by representatives of the cities of Boulder and Aspen, as well as eight individuals affected by the amendment. The trial court sided with the plaintiffs, granting them a permanent injunction against the amendment, which was appealed to the Colorado Supreme Court.

The Colorado Supreme Court upheld the trial court’s ruling, finding the amendment unconstitutional. The justices applied strict scrutiny, which asks the Court to decide whether the government has a compelling interest in enacting a law that burdens a particular group and whether the law itself is narrowly tailored. Amendment 2, the justices found, could not live up to strict scrutiny. The U.S. Supreme Court granted the state’s writ of certiorari.

Constitutional Question

The Equal Protection Clause of the Fourteenth Amendment guarantees that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Does Amendment 2 of the Colorado Constitution violate the Equal Protection Clause?

Arguments

Timothy M. Tymkovich, Solicitor General of Colorado, argued the cause for petitioners. The state felt that Amendment 2 had simply put all Coloradans on the same level. Tymkovich referred to the ordinances passed by Denver, Aspen, and Boulder as "special rights" afforded to people of specific sexual orientations. By getting rid of these "special rights" and ensuring that ordinances could not be passed in the future to create them, the state had ensured that anti-discrimination laws would be generally applicable to all citizens.

Jean E. Dubofsky argued the case on behalf of the respondents. Amendment 2 prohibits members of a specific group from making any claim of discrimination based on sexual orientation. In doing so, it limits access to the political process, Dubofsky argued. "Although gay people can still cast a ballot, the value of their ballot has been substantially and unequally diminished: they alone are barred from even an opportunity to seek a type of protection available to all other people in Colorado—an opportunity to seek protection from discrimination," Dubofsky wrote in her brief.

Majority Opinion

Justice Anthony Kennedy delivered the 6-3 decision, invalidating Amendment 2 of the Colorado Constitution. Justice Kennedy opened his decision with the following statement:

"One century ago, the first Justice Harlan admonished this Court that the Constitution 'neither knows nor tolerates classes among citizens.' Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution."

In order to determine whether or not the amendment violated the Equal Protection Clause of the Fourteenth Amendment, the justices applied strict scrutiny. They agreed with the Colorado Supreme Court's finding that the amendment could not survive this standard of scrutiny. Amendment 2 was “at once too narrow and too broad,” Justice Kennedy wrote. It singled out people based on their sexual orientation, but also denied them broad protections against discrimination.

The Supreme Court could not find that the amendment served a compelling government interest. Intending to harm a specific group out of a general sense of animosity could never be considered a legitimate state interest, the Court found. Amendment 2 "inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications," Justice Kennedy wrote. The amendment created a "special disability upon those persons alone," he added. The only way for someone to obtain civil rights protections based on sexual orientation would be for that person to petition Colorado voters to change the state constitution.

The Court also found that Amendment 2 invalidated existing protections for members of the LGBTQ community. Denver's anti-discrimination laws instituted protections based on sexual orientation in restaurants, bars, hotels, hospitals, banks, shops, and theaters. Amendment 2 would have far-reaching consequences, Justice Kennedy wrote. It would end protections based on sexual orientation in education, insurance brokerage, employment, and real estate transactions. The consequences of Amendment 2, if allowed to remain as part of Colorado's constitution, would be vast, the Court opined.

Dissenting Opinion

Justice Antonin Scalia dissented, joined by Chief Justice William Rehnquist and Justice Clarence Thomas. Justice Scalia relied on Bowers v. Hardwick, a case in which the Supreme Court had upheld anti-sodomy laws. If the Court allowed states to criminalize homosexual conduct, why couldn't it allow states to enact laws "disfavoring homosexual conduct," Justice
Scalia questioned.

The U.S. Constitution does not mention sexual orientation, Justice Scalia added. States should be allowed to determine how to handle protections based on sexual orientation through democratic processes. Amendment 2 was a "rather modest attempt" to "preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws," Justice Scalia wrote. The majority's opinion imposed the views of an "elite class" upon all Americans, he added.

Impact

The significance of Romer v. Evans is not as clear as other landmark cases involving the Equal Protection Clause. While the Supreme Court acknowledged gay and lesbian rights in terms of anti-discrimination, the case made no mention of Bowers v. Hardwick, a case in which the Supreme Court had previously upheld anti-sodomy laws. Just four years after Romer v. Evans, the Supreme Court ruled that organizations like the Boy Scouts of America could exclude people based on their sexual orientation (Boy Scouts of America v. Dale).

Sources

  • Romer v. Evans, 517 U.S. 620 (1996).
  • Dodson, Robert D. “Homosexual Discrimination and Gender: Was Romer v. Evans Really a Victory for Gay Rights?” California Western Law Review, vol. 35, no. 2, 1999, pp. 271–312.
  • Powell, H. Jefferson. “The Lawfulness of Romer v. Evans.” North Carolina Law Review, vol. 77, 1998, pp. 241–258.
  • Rosenthal, Lawrence. “Romer v. Evans as the Transformation of Local Government Law.” The Urban Lawyer, vol. 31, no. 2, 1999, pp. 257–275. JSTOR, www.jstor.org/stable/27895175.