Equal Protection, Romer v. Evans

[A18]

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

After various Colorado municipalities passed ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities, Colorado voters adopted by statewide referendum "Amendment 2" to the State Constitution, which precludes 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." Respondents, who include aggrieved homosexuals and municipalities, commenced this litigation in state court against petitioner state parties to declare Amendment 2 invalid and enjoin its enforcement. The trial court's grant of a preliminary injunction was sustained by the Colorado Supreme Court, which held that Amendment 2 was subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. On remand, the trial court found that the Amendment failed to satisfy strict scrutiny. It enjoined Amendment 2's enforcement, and the State Supreme Court affirmed.

Held: Amendment 2 violates the Equal Protection Clause.

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined.

JUSTICE KENNEDY delivered the opinion of the Court.

One century ago, the first Justice Harlan admonished this Court that the Constitution "neither knows nor tolerates classes among citizens." ... Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution. ...

[Amendment 2 provides: 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.]

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.

... 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.

[True Federalist (진정한 연방 주의자)]

This is the one of those "wet" is "dry" activist decisions that is truly repugnant.  Invoking Harlan I in defense of a law that establishes a class among citizens is truly standing the plain meaning of what he said upside-down.  However, if one accepts that the Civil Rights Act of 1968 and title II and VII of the Civil Rights Act of 1964 are constitutional due to the Equal Protection Clause, then consistency forces one to conclude that Amendment 2 is unconstitutional.

[A18]

Invoking Harlan I in defense of a law that establishes a class among citizens is truly standing the plain meaning of what he said upside-down.

Actually, he was invoking it in condemnation of a law (amendment) that prohibits preferential treatment of a class of citizens.

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That went over my head. How so?

Anyway, the private discrimination portions of the 1964 Civil Rights Act were sustained on Commerce Clause grounds. I don't remember Heart of Atlanta Motel very well, but only one justice in Katzenbach put forward an Equal Protection argument.

I don't know about the 1968 act.

[Emsworth]

Today, we might find discrimination against homosexuals repulsive. But it was not so when the equal protection clause was passed. Rightly or wrongly, homosexuality was considered a crime, not a constitutional right. Thus, the idea that the equal protection clause applies to sexual orientation is absurd. The idea that it requires states to give homosexuals or any other group special treatment is even more ridiculous.

The equal protection clause should only be read to to prohibit discrimination on the basis of race/ethnicity, and possibly sex (due to stare decisis).

[A18]

Except "intermediate scrutiny" is crap and doesn't mean anything. At least "strict scrutiny" generally translates into "you lose" scrutiny.

[Emsworth]

Except "intermediate scrutiny" is crap and doesn't mean anything. At least "strict scrutiny" generally translates into "you lose" scrutiny.

From a practical point of view, sex-based discrimination has to be subject to less scrutiny than race-based discrimination. Obviously, the government cannot establish separate restrooms for different races in government buildings. But equally obviously, it can provide separate restrooms for the two sexes. I really don't see any alternative to the two levels of scrutiny.

This is precisely what results if the Supreme Court ignores the original meaning of a constitutional provision: we get muddled jurisprudence with a variety of arbitrary "tests" and "standards."

[True Federalist (진정한 연방 주의자)]

I don't know about the 1968 act.

The 1968 act basically did for equal housing on a Federal level what had already been tackled by California law and that law had been the subject of Reitman v. Mulkey (1967) which was decided based on the Equal Protection Clause.  I haven't read the Romer decision, but if didn't cite Reitman it should have a least cited a decision that cited Reitman as there are a number of parallels between the two cases.

[opebo]

Today, we might find discrimination against homosexuals repulsive. But it was not so when the equal protection clause was passed. Rightly or wrongly, homosexuality was considered a crime, not a constitutional right. Thus, the idea that the equal protection clause applies to sexual orientation is absurd. The idea that it requires states to give homosexuals or any other group special treatment is even more ridiculous.

Erroneous application of the clause at its inception need not prevent us from applying it more correctly in the present day, emsworth.

[The Duke]

Today, we might find discrimination against homosexuals repulsive. But it was not so when the equal protection clause was passed. Rightly or wrongly, homosexuality was considered a crime, not a constitutional right. Thus, the idea that the equal protection clause applies to sexual orientation is absurd. The idea that it requires states to give homosexuals or any other group special treatment is even more ridiculous.

Erroneous application of the clause at its inception need not prevent us from applying it more correctly in the present day, emsworth.

He's mostly talking about the intent of lawmakers, not what the judges did.