Romer v. Evans

Romer v. Evans, 517 U.S. 620 (1996), is a landmark decision of the Supreme Court of the United States case which held that a state constitutional amendment in Colorado preventing protected status based upon homosexuality or bisexuality violated the Equal Protection Clause. The majority opinion in Romer stated that the amendment lacked "a rational relationship to legitimate state interests", and the dissent stated that the majority "evidently agrees that 'rational basis'—the normal test for compliance with the Equal Protection Clause—is the governing standard". The state constitutional amendment failed rational basis review.

Romer was the first Supreme Court decision to address gay rights since Bowers v. Hardwick (1986), when the Court had upheld laws criminalizing sodomy as constitutional. The decision in Romer set the stage for three subsequent landmark decisions regarding LGBT civil rights: Lawrence v. Texas (2003), where the Court overruled Bowers; According to public opinion surveys, Coloradans strongly opposed discrimination based upon sexual orientation, but at the same time they opposed affirmative action based upon sexual orientation, and the latter concern is what led to the adoption of Amendment 2. The governor of Colorado, Roy Romer, opposed the measure, but also opposed retaliatory boycotts against his state. as well as other individuals and three Colorado municipalities, brought suit to enjoin the amendment. A former Colorado Supreme Court justice, Jean Dubofsky, was the lead attorney. A state trial court issued a permanent injunction against the amendment, and upon appeal, the Colorado Supreme Court ruled that the amendment was subject to "strict scrutiny" under the Equal Protection Clause of the federal Constitution. The state trial court, upon remand, concluded that the amendment could not pass strict scrutiny, which the Colorado Supreme Court agreed with upon review. Both times, the Colorado Supreme Court rendered 2–1 decisions.

The dissenting justice on the Colorado Supreme Court argued that neither a suspect class nor a fundamental right was involved in the case, and thus he would have applied a rational basis test instead of strict scrutiny. On May 20, 1996, the court ruled 6–3 that Colorado's Amendment 2 was unconstitutional, though on different reasoning from the Colorado courts. Justice Anthony Kennedy wrote the majority opinion, and was joined by John Paul Stevens, Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. The Court majority held that the Colorado constitutional amendment targeting homosexuals based upon animosity lacked a rational relation to any legitimate governmental purpose.

While leaving that question unresolved by his opinion, Kennedy concluded that the amendment imposed a special disability upon homosexuals by forbidding them to seek safeguards "without constraint".

And:

Scholarly commentary

The Court's opinion in Romer did not closely follow established equal protection doctrine (Amendment 2 "defied ... conventional inquiry" wrote Justice Kennedy), and the opinion led to much discussion by scholars and lawyers. One article that received widespread attention was by Akhil Amar, a prominent law professor at Yale.

Still, Amar asserted that Amendment 2 violated the Equal Protection Clause (although he preferred an alternative argument based on the Attainder Clause). Regarding the Equal Protection Clause, Amar wrote: Jeffries and his co-author, Daryl Levinson, conclude: "the revival of non-retrogression as a constitutional principle is symptomatic of a Supreme Court adrift in an age of judicial activism." According to law professor Evan Gerstmann, the Court in Romer left unmentioned and unconsidered many purposes of Amendment 2 that the Colorado courts had acknowledged as legitimate. Later, the case was remanded by the Supreme Court for further consideration in 1997 in the wake of the Romer decision. The Sixth Circuit upheld the amendment a second time, differentiating it from the state-level amendment on the grounds that it was a local government action of the type that Amendment 2 was designed to preempt. On October 13, 1998, the Supreme Court rejected an appeal, allowing the Sixth Circuit decision and the city amendment to stand. In 2005, Cincinnati voters overturned the amendment.

Since Romer stood in obvious tension with the Court's earlier decision in Bowers v. Hardwick,

In 2007, fifteen years after the referendum on Amendment 2, the Colorado legislature amended its anti-discrimination law by forbidding discrimination based on sexual orientation and gender identity in employment. In 2008, Colorado further expanded its LGBT protections to include housing, public accommodation, and advertising.

Future Chief Justice John Roberts had donated time pro bono to prepare oral arguments for the plaintiffs in Romer v. Evans. Speaking in 2005 during Roberts' nomination process to the Supreme Court, a case leader, Walter A. Smith Jr., praised his work on the case, recalling, "He said, 'Let's do it.' And it's illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job."

Romer v. Evans

Scholarly commentary

See also

References

Further reading

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