Romer v. Evans,
517 U.S. 620 (1996)

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CERTIORARI TO THE SUPREME COURT OF COLORADO No. 94-1039. Argued October 10, 1995-Decided May 20, 1996

After various Colorado municipalities passed ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities, Colorado voters adopted by statewide referendum "Amendment 2" to the State Constitution, which precludes all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." Respondents, who include aggrieved homosexuals and municipalities, commenced this litigation in state court against petitioner state parties to declare Amendment 2 invalid and enjoin its enforcement. The trial court's grant of a preliminary injunction was sustained by the Colorado Supreme Court, which held that Amendment 2 was subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. On remand, the trial court found that the amendment failed to satisfy strict scrutiny. It enjoined Amendment 2's enforcement, and the State Supreme Court affirmed.

Held: Amendment 2 violates the Equal Protection Clause. Pp. 626-636.

(a) The State's principal argument that Amendment 2 puts gays and lesbians in the same position as all other persons by denying them special rights is rejected as implausible. The extent of the change in legal status effected by this law is evident from the authoritative construction of Colorado's Supreme Court-which establishes that the amendment's immediate effect is to repeal all existing statutes, regulations, ordinances, and policies of state and local entities barring discrimination based on sexual orientation, and that its ultimate effect is to prohibit any governmental entity from adopting similar, or more protective, measures in the future absent state constitutional amendment-and from a review of the terms, structure, and operation of the ordinances that would be repealed and prohibited by Amendment 2. Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection


from injuries caused by discrimination in a wide range of public and private transactions. Pp. 626-631.

(b) In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end. See, e. g., Heller v. Doe, 509 U. S. 312, 319-320. Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment is at once too narrow and too broad, identifying persons by a single trait and then denying them the possibility of protection across the board. This disqualification of a class of persons from the right to obtain specific protection from the law is unprecedented and is itself a denial of equal protection in the most literal sense. Second, the sheer breadth of Amendment 2, which makes a general announcement that gays and lesbians shall not have any particular protections from the law, is so far removed from the reasons offered for it, i. e., respect for other citizens' freedom of association, particularly landlords or employers who have personal or religious objections to homosexuality, and the State's interest in conserving resources to fight discrimination against other groups, that the amendment cannot be explained by reference to those reasons; the amendment raises the inevitable inference that it is born of animosity toward the class that it affects. Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. Pp. 631-636.

882 P. 2d 1335, affirmed.

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 636.

Timothy M. Tymkovich, Solicitor General of Colorado, argued the cause for petitioners. With him on the briefs were Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, John Daniel Dailey and Paul Farley, Deputy Attorneys General, and Rex E. Lee and Carter G. Phillips, Special Assistant Attorneys General.

Jean E. Dubofsky argued the cause for respondents.

With her on the brief for respondents Evans et al. were Rod-

Full Text of Opinion

Primary Holding

Under the Equal Protection Clause of the Fourteenth Amendment, a state cannot amend its constitution to deny homosexuals the same basic legal protections that heterosexuals receive.


Amendment 2 to the Colorado state constitution, which was passed into law by a voter initiative in 1992, provided that no city, town, or county in the state could recognize homosexuals as a protected class through any statute, regulation, ordinance, or policy entitling them to quota preferences, minority status, or claims of discrimination. The Amendment, which succeeded by a relatively narrow margin, appears to have been based on a fear of affirmative action based on sexual orientation rather than any impulse toward discrimination. Ironically, Governor Romer opposed its passage, even though he was named as the defendant in the eventual case.

A state court enjoined the Amendment from enforcement pending determination of the appropriate standard of review. The Colorado Supreme Court concluded that this standard should be strict scrutiny, and the lower state court struck down the Amendment upon remand. The Colorado Supreme Court agreed, although it did not rule on the issue of whether homosexuals were a protected class, which they had been found to be by the trial court. Instead, its ruling was based on the due process notion that homosexuals had a fundamental right to engage in the political process, which the Amendment would have denied them.

Procedural History

Colorado Supreme Court - 882 P.2d 1335 (Colo. 1994)

Affirmed, Amendment 2 does not meet the strict scrutiny standard of review, which is appropriate because the fundamental right of political participation has been restricted for certain sectors of the population.



  • Anthony M. Kennedy (Author)
  • John Paul Stevens
  • Sandra Day O'Connor
  • David H. Souter
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

Rather than relying on fundamental rights and due process, as the state court had, the majority argued that Amendment 2 failed the rational basis test under the Equal Protection Clause. This was the lowest possible standard of review and required showing that the law lacked a rational relation to a legitimate government purpose. Kennedy felt that there was no possible justification for the law other than a specific animus against the group that it targeted, since its virtually limitless scope dwarfed the justifications that the state provided. The imbalance between the narrowly identified class and the breadth of the protections denied made him especially suspicious of a desire to harm homosexuals and an insidious attempt to insulate an impermissible law from judicial review.


  • Antonin Scalia (Author)
  • William Hubbs Rehnquist
  • Clarence Thomas

Scalia felt that there was no evidence to support the majority's inference of animus and that the law merely prevented homosexuals from receiving additional protections rather than removing those in place against discrimination. He also pointed out that the Court had criminalized homosexual conduct in Bowers v. Hardwick, a decision later overruled by Lawrence v. Texas but still valid at the time of this case. Scalia observed that it was logical to deny people who engaged in criminal conduct any special protections. Another precedent that he noted, Davis v. Beason, had found that it was constitutional for laws to target polygamists by denying them protections, and Scalia felt that homosexuals posed a similar social harm to polygamists. More broadly, he criticized the majority for moving beyond the proper boundaries of the judicial role and engaging in unwarranted activism by striking down a law without a specific constitutional basis for doing so.

Case Commentary

This case predated the signature Supreme Court case on homosexual conduct, Lawrence v. Texas, which made this conclusion surprising. A rational basis standard of review would have seemed to suffice to find this amendment valid, so the Court implicitly seems to have used a higher standard.

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