Romer v. Evans - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 94-1039, Romer against Evans will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: I have the opinion for the Court in Romer versus Evans.

The central issue here is an amendment to the Constitution of the State of Colorado.

It is known as Amendment 2 and it was adapted after a State wide referendum in 1992.

The impetus of the Amendment came largely from ordinances that had been past in the Cities of Aspen, Boulder, and Denver banning discrimination in many areas, including housing, employment, public accommodations, and health and welfare services.

The ordinances had barred discrimination on various grounds including sexual orientation.

A limit to repeal the ordinances and forbids their reenactment to the extent that they prohibit discrimination on the basis of and this is a quotation from Amendment 2, “homosexuals, lesbian, or bisexual orientation, conduct, practices or relationships.”

The Amendment also prohibits any other legislative executive or judicial action at the state or local level to give specific legal protection of any sort the homosexuals or bisexual.

After a series of State Court proceedings, the Supreme Court of Colorado found that Amendment 2 violates the United States Constitution.

We granted certiorari.

We now affirm the judgment but on a rationale different from that adapted by the State Supreme Court.

The State's main argument in defense of Amendment 2 is that it put gays and lesbians in the same position as everyone else that is the Amendment only denies homosexuals’ especial rights.

We find this reading of the Amendment implausible in view with interpretation by the State Supreme Court.

Most States now choose to countered discrimination by enacting statutes that identifies certain institutions and business and then specify grounds, they may not use as basis for discrimination, but also did cover the institutions or business for discriminating on the basis of traits including age, military status, marital status, pregnancy, parenthood, custody of the minor child, political affiliation, physical and mental disability and in recent times sexual orientation.

Amendment 2 bars homosexuals from securing protection against the injury that these public accommodation laws address.

It also nullifies specific protection for gays in housing and insurance, health and welfare services, private education and employment, and forbids all laws or policies providing specific protection for gays or lesbians from discrimination by any level of Colorado's Government.

We cannot accept the view that Amendment 2 only deprives homosexuals' special rights.

No matter how local or discreet the harm they may suffer, no matter how public or widespread the injury, they can obtain protection from the laws only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State's view, by trying to past helpful laws of general applicability.

The protections that Amendment 2 denies to homosexuals have taken for granted by most people either because they already have them or do no need them.

They have protections against exclusion from an almost limitless number of transactions that constitute ordinary civic life in a free society.

We have held that if a law neither burdens the fundamental right, nor targets a suspect class.

We will uphold the legislative classification so long as it bears a rational relationship to some legitimate end.

Amendment 2 however, fails and indeed defies this conventional inquiry.

First, it is not within our constitutional traditional to enact laws of this sort.

Counter both to the idea or the rule of law into our own constitution's guarantee of equal protection is the principal that government and each of its parts remains open on impartial terms to all who seek its assistance.

A law declaring that in general it should be more difficult for one group of citizens control others to sick aid from the government is a denial of equal protection of the laws in the most literal sense.

Second, in addition to the far reaching deficiencies of the Amendment 2 just noted the principles it offends in another sense are conventional and venerable.

A law must bear rational relationship to an illegitimate governmental purpose and Amendment 2 does not.

The primary rationale that 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 justifications Colorado offers for it that we find it impossible to credit them.

We can not say that Amendment 2 is directed to any identifiable legitimate purpose or discreet objective.

It is a status based enactment divorced from any factual context from which we can discern a relationship to legitimate State interest.

It is a classification of persons undertaken for its own sake something that Equal Protection Clause does not permit.

We must conclude that Amendment 2 classifies homosexual 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.

Argument of Justice Scalia

Mr. Scalia: I dissent from the judgment of the Court in this case.

Justice Kennedy’s description of the Court’s opinion said that the court found it implausible that the Colorado constitutional provision in question prohibits only special preference.

The opinion does indeed say that it finds it implausible but goes on to say that it accepts for purposes of the court’s decision that that is all that the constitutional provision prohibits special treatment for homosexuals.

I think that is in fact the reality of the matter but whether is it or not the court’s opinion accepts it to be true and my remarks take into account that acceptance.

The only denial of equal treatment, the court contend homosexuals has suffered is this: They may not obtain preferential treatment without amending the State Constitution.

That is to say the principle underlying the court’s opinion is that one who is accorded equal treatment under the laws but cannot as readily as others obtain preferential treatment under the laws has been denied equal protection of the laws.

If merely stating this alleged equal protection violation does not suffice to receive it, our constitutional jurisprudence have achieved terminal silliness.

The central thesis of the court’s reasoning is that any group is denied equal protection when in order to obtain advantage or presumably to avoid or eliminate disadvantage it must have recourse to a more general and hence more difficult level of political decision making than other citizens.

The world has never heard of such a principle and it seems to me most unlikely that any multilevel democracy can possibly function under such a principle.

For whenever a disadvantage is imposed or conferral of the benefit is prohibited, at one of the higher levels of democratic decision making, i.e. by the state legislature rather than local government or by the people at large in the State Constitution rather than by the state legislature, the affected group has under this theory automatically been denied equal protection.

The Court gives the back of its hand to the usual test for compliance with the Equal Protection Clause whether the legislation had a rational basis.

It is unsurprising that the Court avoids discussion of this question since the answer is so obviously yes.

The case most relevant to the issue before us today is not even mentioned in the Court’s opinion.

In Bowers versus Hardwick, decided ten years ago, we held that Constitution does not prohibit what virtually all States had done from the founding of the republic until very recent years namely making homosexual conduct a crime.

That holding is a given in the present case.

Respondents did not urge the overruling of Bowers but obviously 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, and a fortiori it is constitutionally permissible for a State to adapt the provision not even disfavoring homosexual conduct but merely cohabiting all levels of state government from bestowing special protection upon homosexual conduct.

The Court’s opinion contains grim disapproving hints that Coloradans have been guilty of animus or “animosity” toward homosexuality as though that has been established as on America.

Of course it is our moral heritage that one should not hate any human being or class of human beings but I have thought that one could consider certain conduct reprehensible, murder for example or polygamy or even cruelty to animals and could even exhibit animus towards such conduct.

Surely that is the only sort of animus at issue here, moral disapproval of homosexual conduct the same sort of moral disapproval that produce the century’s old laws that we held constitutional in Bowers.

But though Coloradans are as I say entitled to be hostile towards homosexual conduct.

The fact is that the degree of hostility reflected by Amendment 2 is the smallest degree conceivable.

The Court’s portrayal of Coloradans as a society fallen victim to pointless hate-filled gay-bashing is entirely false.

Colorado not only is one of the 25 states that have repealed their antisodomy laws but it was among the first to do so.

But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful.

Often evolution simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens.

Nonetheless, by the time Coloradans who are asked to vote on Amendment 2, three Colorado cities, Aspen, Boulder, and Denver had enacted ordinances that listed sexual orientation as an impermissible ground for discrimination equating the moral disapproval of homosexual conduct with racial or religious bigotry.

The phenomenon had even appeared State wide.

The Governor of Colorado had signed an Executive Order directing all state agency heads to "ensure nondiscrimination in hiring and promotion based on among other things sexual orientation."

I do not mean to be critical of this legislative successes, homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as is the rest of society, but they are subject to be encountered by lawful democratic countermeasures as well and that is where Amendment 2 came in.

It sought to counter both the geographic concentration and the disproportionate single issue voting power of homosexuals by (1) resolving the controversy at the State wide level and (2) making the election a single issue contest for both sides.

It 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 procedure is unconstitutional.

Lacking any cases to establish that proposition, the Court simply asserts that is must be unconstitutional because it has never happened before.

It is not the Court says within our constitutional traditional to enact the laws as of this sort.

As I have noted, this is proved false every time a state law prohibiting or disfavoring certain conducts is passed because such a law prevents the adversely affected group whether drug addict or smokers or gun owners or motorcyclists from changing the policy thus established in each of the sub units of the State.

But there is no much closer analogy one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality State wide against the efforts of a geographically concentrated and politically powerful minority to undermine it.

The Constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah, to this date contain provisions stating that polygamy is “forever prohibited.”

Polygamists and those who have a polygamous orientation have been singled out by these provisions for much more severe treatment than merely denial of favored status which is what at issue here, and that treatment can only be changed by achieving amendment of the State Constitution.

The Court’s disposition today suggest that these provisions are unconstitutional and that polygamy must be permitted in these States on a State legislated or perhaps even local option basis unless of course polygamists for some reason have fewer constitutional rights than homosexuals.

The United States Congress by the way required the inclusion of this anti-polygamy provision in the constitutions of Arizona, Idaho, New Mexico, Oklahoma, and Utah, as a condition of their admission to the Union.

The Court’s stern disapproval of animosity towards homosexuality might be compared with what an earlier court said in one of the cases involving those anti-polygamy laws, Murphy versus Ramsey, rejecting a constitutional challenge to United States Statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation.

The court wrote, "Certainly no legislation can be supposed more wholesome and necessary in the founding of a free self governing commonwealth fit to take rank as one of the coordinate states of the Union, than that whcih seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization, the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement."

I would not myself engage in such official praise for heterosexual monogamy because it think it no business of the courts as suppose to the political branches to take sides in this culture war.

But the Court today has done so not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces but even by verbally disparaging as bigotry adherence to traditional latitude.

I vigorously dissent.

My dissent is joined by the Chief Justice and Justice Thomas.