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

  • A voter referendum in Colorado amended the State Constitution to prohibit any legislative, executive, or judicial action designed to protect homosexuals.
    • This stopped cities and municipalities in Colorado from banning discrimination in housing, employment, etc.
    • Colorado argued that this protected the interests of employers and landlords to choose who they want to associate with.
  • The US Supreme Court found the amendment unconstitutional.
    • The US Supreme Court noted that the 14th Amendment’s right of equal protection must be balanced with the practical necessity that most legislation classifies people for one purpose or another, with resulting disadvantage to various persons or groups.
    • The Court noted that the rational basis testwas the applicable standard in this case.
      • The rational basis test says that if a law neither burdens a fundamental right nor targets a suspect class, the law shall be upheld so long as it bears a rational relation to some legitimate end.
      • The courts do not consider homosexuals to be a suspect class.
    • The Court found that the amendment does not bear a rational relationship to a legitimate government purpose.
      • So even under the rational basis test (the lowest standard of judicial scrutiny), the law was still a violation of the Equal Protection Clause.
        • Couldn’t preventing people from having to associate with those they find immoral be a ‘rational’ and legitimate government purpose?
          • Based on the Court’s reasoning in this case, it appears that they were secretly applying a strict scrutiny review, they just didn’t want to admit it because that would require them to find that homosexuals were a suspect class, and the majority of the Justices probably weren’t ready to do that.
    • Colorado argued that the amendment just puts homosexuals in the same position as other persons. However, the Court found that “in making a general announcement that homosexuals shall not have any protections from the law, inflicts on them immediate, continuing, and real injuries that outrun any legitimate justifications that may be claimed for it.”
      • “The amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.”
      • “A law declaring that in general it shall be more difficult for one group of citizens that for all others to seek aid from the government is itself a denial of equal protection in the most literal sense.”
  • In a dissent, it was argued that the Court had recently ruled that it was constitutional to criminalize homosexuality (Bowers v. Hardwick (478 U.S. 186 (1986)), so how could it be unconstitutional to deny homosexuals preferential treatment as a protected class?