Targeting gays and lesbians:
1996 U.S. Supreme Court ruling (Romer v. Evans)
overturning an anti-gay Amendment 2 in Colorado.
This essay is a continuation from Part 1
Election day, 1992-NOV: The Amendment:
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
she observed a focus group of women from Douglas County who had been assembled
to discuss the election. She said:
"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 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 those adults who are sufficiently
motivated to vote.
Years later, hatred and its near cousin, fear, formed the foundation of the battle against same-sex marriage (SSM) by religious and social conservatives. At first, they attempted to raise the fear that same-sex marriage would attack opposite-sex (a.k.a. traditional) marriage. But that argument never did gain much traction because most people could not imagine how a gay or lesbian couple on the next block could damage their own marriage. So the anti-SSM forces switched to raising fear about some lesbian, gay, bisexual, transgender (LGBT) menace attacking people's freedom of religion. The National Organization for Marriage (NOM) made a very effective TV ad with this theme in 2009 that is well worth watching -- an analyzing -- along with some very amusing parodies of the original ad.
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:
||That homosexuality is a chosen and
changeable behavior; it is what homosexuals do. Religious liberals, gays, lesbians, bisexuals, mental
health therapists, human sexuality researchers and others generally believe that
homosexuality is actually an immutable, unchosen and unchangeable sexual
orientation; it is what homosexuals are.
||That groups should only be protected against
discrimination based on immutable factors, like sex, race, and skin color, etc. They
reject the concept that people should be protected from discrimination
based on chosen factors. Since they regard homosexuality as a "chosen
feel that homosexuals should not be a protected class. They overlook the
fact that people choose the religion that they wish to follow, and can choose their religion at any time. Yet they demand freedom from
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." 2
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:
||First, does the law promote a compelling state
||Second, does it do so in the least restrictive
means possible." 2
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
"... 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"
lesbians and bisexuals are such a small minority. 2 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 found for the
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 Supreme Court ruled that, under Amendment 2:
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." 2
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
Amendment 2 was dead.
Justice Scalia wrote the dissenting argument. He made a number of points :
||He noted that in the decision of Bowers v. Hardwick (1986), the Supreme Court had determined -- ten years
earlier -- that states had a constitutional right to define homosexual behavior
as criminal acts. He implies that the Court had ignored this precedent.
Instead, he feels that they treated "opposition to homosexuality is as
reprehensible as racial or religious bias." [The Supreme Court later apologized for that decision and reversed it in Lawrence v. Texas]
||The U.S. Constitution says nothing about homosexual bias. Thus, it is left
up to Congress, state legislatures, and state constitutions to resolve the
||Amendment 2 would have prevented "special treatment of homosexuals and
nothing more." For example, if the Amendment were in force, retiring
homosexual state employees would still be treated in the same way as
heterosexual employees in terms of a pension. However, it would prevent the
State or any municipality from giving a death benefit to the life partner of a
homosexual, when no such benefit were given to a long time roommate of a
||"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.... [Thus] it is
constitutionally permissible for a State to adopt a provision not even
disfavoring homosexual conduct, but merely prohibiting all levels of state
government from bestowing special protections upon homosexual conduct."
||If it is acceptable, under Bowers v. Hardwick, "...to criminalize the [homosexual] conduct, surely it is rational to deny
special favor and protection to those with a self avowed tendency or desire to
engage in the conduct." -- i.e. celibate persons with a homosexual
||"No principle set forth in the Constitution, nor even any imagined by
this Court in the past 200 years, prohibits what Colorado has done here."
||Amendment 2 "...put directly, to all the citizens of the State, the
question: Should homosexuality be given special protection? They answered no.
The Court today asserts that this most democratic of procedures is
unconstitutional. Lacking any cases to establish that facially absurd
proposition, it simply asserts that it must be unconstitutional, because it
has never happened before."
||Justice Scalia drew an analogy between homosexuals and polygamists. Many
state constitutions specifically prohibit polygamy. i.e. polygamists
have been singled out for "more severe treatment than merely denial of
favored status." He submits that the logic in the majority ruling could
also be used to legalize multiple marriages.
||He referred to Amendment 2 as "Colorado's reasonable effort to preserve
traditional American moral values."
||He concludes: "Today's opinion has no foundation in American
constitutional law, and barely pretends to. The people of Colorado have
adopted an entirely reasonable provision which does not even disfavor
homosexuals in any substantive sense, but merely denies them preferential
treatment. Amendment 2 is designed to prevent piecemeal deterioration of the
sexual morality favored by a majority of Coloradans, and is not only an
appropriate means to that legitimate end, but a means that Americans have
employed before. Striking it down is an act, not of judicial judgment, but of
political will. I dissent."
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:
||Colorado became widely referred to as "The Hate State."
||The Amendment caused "...a landmark pro-gay Supreme Court ruling voiding
the law..." which had nation-wide consequences.
||It "prodded so many gays out of the closet they now feel they're
winning the social wars."
||"...some of Colorado's most conservative political voices now
acknowledge that by attacking homosexuality so openly in the 1992 election,
they awakened their enemies and weakened their supporters with early
||Polls show that almost 90 percent of American adults now favor equal job
protections for gays and lesbians. 3
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." 3
Justice Scalia's dissent relied, 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
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- The case's syllabus, majority opinion and dissenting opinion are online at: http://supct.law.cornell.edu/
- "Roy Romer, Governor of Colorado v. Richard G. Evans..." National
Legal Foundation, at: http://www.nlf.net/Romer.html
- Michael Booth, "When 'hate' became resolve. State's Amendment 2 led to gay protections,"
Denver Post, 2002-SEP-29, at: http://www.denverpost.com/
- The text of the Supreme Court decision in Romer v. Evan is online at: http://caselaw.lp.findlaw.com
Copyright © 2003 to 2012 by Ontario Consultants on Religious
Originally written: 2003-JUL-7
Latest update: 2012-FEB-12
Author: B.A. Robinson