Romer v. Evans, (judicial citation 517 U.S. 620) (1996), was a United States Supreme Court case dealing with civil rights and state laws. The Court gave its ruling on May 20, 1996 against an amendment to the Colorado state constitution that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to protect homosexual citizens from discrimination on the basis of their sexual orientation.


On November 3, 1992, Colorado voters, with a vote of 53.4 percent, enacted "Amendment 2", which read:

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.

The amendment was drafted and promoted by the organization Colorado for Family Values, and it would have effectively prevented any laws banning discrimination against gays, and thereby nullified gay rights laws that already existed in Aspen, Denver, and Boulder.

An immediate legal challenge was launched by gay rights groups. On January 15, 1993 the groups were granted a temporary injunction from District Court Judge Jeffrey Bayless preventing Amendment 2 becoming part of the state constitution, on the grounds of its possible unconstitutionality and possible irreparable harm that would be caused by its implementation. The court scheduled a trial to decide the case.

Before the trial could begin, the state appealed to the Colorado Supreme Court. On July 19, 1993, that court upheld the original injunction, on the grounds that Amendment 2 violated the equal protection clause of the Fourteenth Amendment to the United States Constitution, insofar as Amendment 2 denied gays equal rights to normal political processes. Chief Justice Luis Rovera wrote:

Were Amendment 2 in force [...] the sole political avenue by which this class could seek such protection (against discrimination) would be through the constitutional amendment process.

The state Supreme Court demanded that the legislation face "strict scrutiny" and prove that it advanced a "compelling state interest", and returned the case to the District Court for trial. Judge Bayless found that the amendment failed the test, and ruled it unconstitutional on December 14, 1993.

Colorado appealed to the State Supreme Court, which affirmed the District Court's decision on October 11, 1994, and appealed to the U.S. Supreme Court.

The U.S. Supreme Court ruling

The case was argued on October 10, 1995. On May 20, 1996, the court ruled 6-3 that Colorado's Amendment 2 was unconstitutional, though on different reasoning than the Colorado courts. Justice Anthony Kennedy wrote the majority opinion, and was joined by John Paul Stevens, Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Rejecting the state's argument that Amendment 2 merely blocked gays from receiving "special rights", Kennedy wrote:

To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.

Kennedy argued that protection offered by antidiscrimination laws was not a "special right" because they protected fundamental rights already enjoyed by all other citizens. Though antidiscrimination laws "enumerated" certain groups which they protected, this merely served to put others on notice (i.e., the enumeration was merely declaratory).

Instead of applying "strict scrutiny" to Amendment 2 (as Colorado Supreme Court had required) Kennedy wrote that it did not even meet the much lower requirement of having a rational relationship to a legitimate government purpose:

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] 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.

Kennedy did not go into depth in rejecting the claims put forward in support of the law (protecting the rights of landlords to evict gay tenants if they found homosexuality morally offensive, etc.) because he held that the law was so unique as to "confound this normal process of judicial review" and "defies...conventional inquiry." This conclusion was supported by his assertion that "It is not within our constitutional tradition to enact laws of this sort." Finding that "laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected," the Court implied that the passage of Amendment 2 was born of a "bare...desire to harm" homosexuals.


Justice Antonin Scalia wrote an impassioned dissent which was joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas. Scalia wrote:

[Amendment 2 is] a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are [...] unimpeachable under any constitutional doctrine hitherto pronounced.

Scalia argued that Amendment 2 did not deny homosexuals access to the political process but merely made it more difficult to enact laws that they favored. He noted that the majority's result stood in flat contradiction to the court's earlier decision in Bowers v. Hardwick, 478 U.S. 186 (1986), in which it had ruled that laws outlawing sodomy are not unconstitutional. That was based on the fact that Bowers had rejected a rational-basis challenge to sodomy laws on the grounds that traditional moral disapproval furnished such a rational basis. Scalia noted:

If it is rational to criminalize the 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.

Justice Scalia also asked how the holding of the majority could be reconciled with Davis v. Beason, 133 U.S. 333 (1890):

"remains to be explained how §501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not?"

Against what he saw as judicial activism, he wrote:

Since the Constitution of the United States says nothing about this subject [homosexuality], it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions.

Justice Scalia stated that the Court should take no part in what is termed the "culture war". After quoting a passage from Murphy v. Ramsey, 114 U.S. 15 (1885) which had praised governmental favouring of heterosexual monogamy, Justice Scalia wrote the following:

"I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed 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 attitudes."

The dissent ends as follows:

"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."


In 1993, Cincinnati, Ohio passed Ballot Issue 3, an amendment to the city charter which forbade the city from adopting or enforcing civil rights ordinances based on sexual orientation, the only municipality in the United States to pass such a restriction. The wording of Cincinnati's amendment was almost identical to that of Colorado's. The amendment was upheld by the Sixth Circuit Court of Appeals in 1996 but remanded by the Supreme Court for further consideration in 1997 in the wake of the Romer decision. The Sixth Circuit upheld the amendment a second time, differentiating it from the state-level amendment on the grounds that it was a local government action of the type that Amendment 2 was designed to pre-empt. On October 13, 1998, the Supreme Court rejected an appeal, allowing the Sixth Circuit decision and the city amendment to stand. In 2005, Cincinnati voters overturned the amendment.

Since Romer stood in obvious tension with the Court's earlier decision in Bowers v. Hardwick, 478 U.S. 186 (1986), it laid the groundwork for 2003's Lawrence v. Texas, 539 U.S. 558 (2003), which overturned Bowers. Romer, however, has not been widely cited beyond Lawrence, no doubt because Kennedy emphasized the "special" nature of Amendment 2 and refused to apply traditional rational-basis analysis to the Colorado law.

In this case, the court lined up in almost the same way as in Lawrence, though in Lawrence Justice O'Connor concurred in the judgment on different grounds.

Ironically, although Roy Romer was on record as opposing Amendment 2, his name was on the suit as defendant and the appellant solely due to his position as governor of Colorado.

In 2007, fifteen years after the referendum on Amendment 2, a law was passed that banned discrimination based on sexual orientation and gender identity for all employers in Colorado.

Further reading

  • Hasian, Marouf A., Jr.; Parry-Giles, Trevor (1997). "‘A Stranger to Its Laws’: Freedom, Civil Rights, and the Legal Ambiguity of Romer v. Evans". Argumentation and Advocacy 34: 27–42. ISSN 10511431. 
  • Murdoch, Joyce; Price, Deb (2001). "The Constitution 'Neither Knows nor Tolerates Classes among Citizens'", Courting Justice: Gay Men and Lesbians v. the Supreme Court. New York: Basic Books. ISBN 0465015131. 

External links

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