TARGETING GAYS AND LESBIANS:

Ruling by the U.S. Supreme Court in Romer v. Evans

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Quotation:

Overview of the case:

Many municipalities in Colorado have passed anti-discrimination ordinances which prohibit discrimination based on race, religion, gender, etc. in areas of housing, employment, education, public accommodations, health and welfare services, etc. Some municipalities went further and included sexual orientation in their list of protected classifications.

In 1992, Colorado voters approved Amendment 2 to the state constitution by a  narrow margin (54% to 47%). According to the U.S. Supreme Court decision, it would have prohibited "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'." ₂

Some municipalities, civil libertarians, gays and lesbians initiated a lawsuit, "Romer v. Evans, to have the Amendment declared unconstitutional. They sought and received a preliminary injunction from the trial court, thus preventing the Amendment from ever being implemented. The injunction was upheld by the Colorado Supreme Court. The trial court and the Colorado Supreme Court agreed that Amendment 2 infringed the fundamental right of gays and lesbians to participate in the political process. They found that Amendment 2 had violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The U.S. Supreme Court agreed on 1996-MAY-20, and the Amendment was history. The vote was 6 to 3, with Justices Scalia, Rehnquist and Thomas dissenting. These were the identical three judges who dissented in the Lawrence v. Texas case in 2003-JUN.

A number of projects underway in other states, which might have resulted in similar Propositions and Amendments being passed, were abandoned because of this ruling.

Anti-discrimination ordinances:

"In early 1991, a group of citizens in Colorado Springs became concerned over the passage of local ordinances in several Colorado municipalities." ₃ Prime examples were the cities of Aspen, Boulder, and Denver which prohibited discrimination based on the basis of a person's sexual orientation in employment, housing and public accommodations.  Other items of concern were at the State level. For example:

Will Perkins and other conservative Christians formed a group called Colorado for Family Values. Their prime goal was to repeal all such laws and regulations. The Fundamentalist Christian group, Focus on the Family, located in Colorado Springs, CO gave a donation to CFV. Focus was one of five conservative Christian para-church groups represented on the CFV board. _4,5

There were two conflicting interpretations circulating in Colorado about these ordinances, state laws and executive orders:

Since terms such as homosexual, lesbian, gay and bisexual do not appear anywhere in the regulations, it seems that the interpretation by homosexuals and the courts is correct: homosexuals and bisexuals were not given any special privileges by these regulations. The conservative Christians were factually incorrect. However, they conducted a masterful advertising campaign. The author was in Colorado at during the lead-up to the Amendment 2 plebiscite and noted that many people -- of all religious persuasions -- honestly believed that gays and lesbians were seeking or were being given special privileges in the state.

Amendment 2:

In 1991-AUG, the CFV, aided by the Fundamentalist Christian National Legal Foundation, wrote a proposed amendment to the state constitution. It said:

"No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing." ₂

It is obvious that the scope of the Amendment -- in the words of the U.S. Supreme Court -- "...does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians."

Amendment 2 would have:

At first, gays and lesbians were confident that the Amendment would fail. Tea Schook, led the opposition. She first realized that the Amendment might be approved when she observed a focus group of women from Douglas County who had been assembled to discuss the election. "That was supposed to be our voter. We watched how one very poisonous woman turned a bunch of people who really didn't have an opinion into some very rabid, queer-hating people. We didn't know how much of a shoo-in hate really was." Polls in the advance of the plebiscite showed that the Amendment would fail. However, polls only reflect the beliefs of a random sampling of all adults. The do not necessarily indicate the beliefs of adults who are sufficiently motivated to vote.

On 1992-NOV-3, the voters of Colorado adopted Amendment 2 by a vote of 53.4% to 46.6%. According to the National Legal Foundation, this prevented their state legislatures and all local "governments from granting protected status to a group of individuals based not on an inalienable physical characteristic, but on a chosen lifestyle." This comment demonstrates two very common beliefs among religious conservatives:

The trial court case:

The National Legal Foundation reported that: "Almost immediately, the homosexual forces struck back, challenging the constitutionality of Amendment 2." The "homosexual forces" actually consisted of a coalition of gays, lesbians, civil liberties groups, and representatives from some Colorado municipalities. They initiated a lawsuit in the District Court for the City and County of Denver. One ironic twist is that Governor Romer had been on record as opposing the Amendment. Yet "he was named in his official capacity as a defendant, together with the Colorado Attorney General and the State of Colorado." ₁

The plaintiffs asked the trial court for an immediate temporary injunction that would prevent the Amendment from being activated. The injunction was granted. An appeal was then taken to the state Supreme Court which sustained the injunction. The Supreme Court also determined that the Amendment should be "subject to strict scrutiny under the Fourteenth Amendment [of the U.S. Constitution] because it infringed the fundamental right of gays and lesbians to participate in the political process." ₃ The Fourteenth Amendment guarantees that people will be treated equally under the law. "Under a strict scrutiny standard, a statute is examined using two tests:

In the trial court, "The State's principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights." 1 The court rejected this argument, and found for the plaintiffs. Later, the U.S. Supreme Court commented: "This reading of the amendment's language is implausible."

The appeal to the Colorado Supreme Court:

The case was appealed to the Colorado Supreme Court who "held that there was a 'fundamental right to participate equally in the political process,' and that Amendment 2 denied homosexuals their equal participation. In order to have their grievances met, homosexuals would have to pass a future initiative that would overturn Amendment 2. This appeal to the voters of the entire state was ruled to be over-burdensome" since gays, lesbians and bisexuals are such a small minority. ₃  The court found that "the amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies." The court was factually in error here, because the Amendment also withdrew legal protection from bisexuals.

The Colorado Supreme Court also found for the plaintiffs.

The appeal to the U.S. Supreme Court:

Justice Kennedy wrote the majority decision. He rejected the assertion that Amendment 2 simply deprived homosexuals of "special rights" which were not shared by the rest of the population. This was the argument used by Colorado for Family Values during their publicity campaign which lead up to the plebiscite. The court ruled that, under Amendment 2, "Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society."

The court also found "that Amendment 2 did discriminate against an identifiable class of people and violated their rights to due process and equal protection under the law. The court held that Amendment 2 was based in 'animus,' or hatred, against a specific group of people." ₃

In unusually frank language, the court found that "the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.... Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence."

In conclusion, Justice Kennedy commented: "The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit....We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed." Amendment 2 was dead.

Dissenting argument:

Justice Scalia wrote the dissenting argument. He made a number of points:

Amendment 2 from the perspective of history:

According to a 2002-SEP article in the Denver Post, there were a number of long-term reactions to the passage of Amendment 2 -- some of which may not have been anticipated at the time:

David Smith, spokesperson for the gay-positive Human Rights Campaign said in 2002: "The effort to achieve equality for gay people is moving forward on a number of fronts. More and more people feel safe and secure coming out and identifying themselves as gay. That coming out of the closet was from Amendment 2 and all the subsequent organizing. Sometimes a defeat leads to victory." ₆

Justice Scalia's dissent relies, in part, on the court's earlier determination that states could criminalize homosexual behavior. Just as a convicted murderer cannot claim special privileges, it is unreasonable to allow gays and lesbians to receive preferential treatment. His arguments are significantly weakened by the Supreme Court's decision during 2003-JUN in the Lawrence v. Texas case to overturn Bowers v. Hardwick, and decriminalize same-sex behavior throughout the country. Another development that weakens his argument is the belief by most American adults that granting of protections in employment, accommodation, etc to persons of all sexual orientations does not give special privileges to person of any one sexual orientation.

References:

1. The case's syllabus, majority opinion and dissenting opinion are online at: http://supct.law.cornell.edu/
2. The text of the Supreme Court decision in Romer v. Evan is online at:  http://caselaw.lp.findlaw.com
3. "Roy Romer, Governor of Colorado v. Richard G. Evans..." National Legal Foundation, at: http://www.nlf.net/Romer.html
4. Brian McKinley, "Why Focus on the Family is of the Devil," at: http://www.elroy.net/ehr/
5. Don Romesburg, "James Dobson's darker side: A carefully kept secret. U.S. News and World Report cover-Story fails to expose It," GayToday, at:  http://gaytoday.badpuppy.com/
6. Michael Booth, "When 'hate' became resolve. State's Amendment 2 led to gay protections," Denver Post, 2002-SEP-29, at: http://www.denverpost.com/

Copyright © 2003 and 2004 by Ontario Consultants on Religious Tolerance
Originally written: 2003-JUL-7
Latest update: 2004-SEP-16
Author: B.A. Robinson