Barner, Kevin M.

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 27Number 1 Summer/Fall 1996 Article 121996Recent Developments: Romer v. Evans: ColoradoReferendum Barring Sexual Orientation as aDiscrimination Cause of Action Is Violative of theFourteenth Amendment's Equal Protection ClauseKevin M. BarnerFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationBarner, Kevin M. (1996) "Recent Developments: Romer v. Evans: Colorado Referendum Barring Sexual Orientation as aDiscrimination Cause of Action Is Violative of the Fourteenth Amendment's Equal Protection Clause," University of Baltimore LawForum: Vol. 27 : No. 1 , Article 12.Available at: http://scholarworks.law.ubalt.edu/lf/vol27/iss1/12I n a controversial six to three decision, the Supreme Court of the United States, in Romer v. Evans, 116 S. Ct. 1620 (1996), held that "Amendment 2," a pro-posed amendment to the Colorado state constitution, violated the Equal Protection Clause of the Fourteenth Amendment. The Court found no legitimate state interest advanced by an amend-ment which denied homosexuals the pursuit of legal protections afforded to other groups. In so holding, the Court rejected morally based legislation burdening a par-ticular class and created an uncer-tain future for legislation based on moral ideals. In 1992, rolorado's state con-stitution was amended as the result of a statewide referendum. The impetus for the referendum stem-med from numerous municipal ordinances banning discrimina-tion in areas such as housing, em-ployment, education, public ac-commodations, and health and welfare services. Amendment 2 repealed these ordinances to the extent that they prohibited discrim-ination based on sexual orienta-tion. In its explicit terms, Amend-ment 2 prohibited all legislative, executive and judicial action de-signed to protect homosexuals or bisexuals. Shortly following its adoption, litigation to invalidate Amendment 2 began. In the District Court for the County of Denver, plaintiffs, many of whom were homosexual, Romer v. Evans Colorado Referendum Barring Sexual Orientation As A Discrimination Cause Of Action Is Violative Of The Fourteenth Amendment's Equal Protection Clause By Kevin M. Barner argued that the enforcement of Amendment 2 would subject them to the immediate risk of discrimi-nation. The court granted a pre-liminary injunction and an appeal was taken to the Supreme Court of Colorado. Colorado's highest court sustained the injunction and remanded the case for further con-sideration, holding that strict scru-tiny was the proper standard of review and finding that Amend-ment 2 infringed the fundamental right of gays and lesbians to partic-ipate in the political process. On remand, the district court found that the State failed to show that Amendment 2 had been nar-rowly tailored to meet a compel-ling governmental interest. The Supreme Court of Colorado af-firmed the district court and the Supreme Court of the United States granted certiorari to decide whether Amendment 2 violated the Equal Protection Clause of the Fourteenth Amendment. The Court began its analysis by Recent Developments declaring as "implausible" the State's argument that Amendment 2 merely places gays and lesbians in the same position as all other persons. Romer, 116 S. Ct. at 1624. Pointing to the findings of the Colorado Supreme Court, the Court found that, since Amend-ment 2 repealed existing statutes and regulations barring discrimina-tion based on sexual orientation, the "ultimate effect" of Amend-ment 2 was to limit all governmen-tal bodies from adopting similarly protective measures "unless the state constitution is first amended to permit such measures." Id. at 1625 (citing Evans v. Romer, 854 P.2d 1270 (Colo. 1993)). Homo-sexuals, according to the Court, were thus deprived of previously enjoyed legal protection from dis-criminatory injuries, and any hopes of the reinstatement of those protections would be quashed. Id. The Court acknowledged that the Fourteenth Amendment does not grant Congress the power to prohibit discrimination in places of public accommodations. Id. (cit-ing Civil Rights Cases, 109 U.S. 3 (1883)). For this reason, Colo-rado, like most other states, has enacted its own statutes to prevent such discrimination. Id. Such statutes often provide a broad definition of public accom-modation which includes "hotels, restaurants, ... insurance agencies, and 'shops and stores dealing with goods or services of any kind. '" ld. (quoting Denver Rev. Munici-27.1 U. Bait. L.F. 43 Recent Developments pal Code, Art. IV, § 28-92). In admonishing the effect of Amendment 2, the Court pointed out that not only were homosexu-als barred from the protections of public accommodation laws, but legislation that had been enacted to stem discrimination against homo-sexuals was repealed. Id. at 1626. For instance, a certain Colorado executive order which "forbids employment discrimination against all state employees ... on the basis of sexual orientation," would have been repealed. Id. (citing Exec. Order No. D0035, 3 C.F.R. (1990)). According to the Court, the promise of equal protection of the laws must co-exist with the practi-cal reality that most laws inevita-bly classify one group, resulting in a possible disadvantage to one or more other groups. Id. at 1627 (citing Personnel Adm'r of Mass. v. Fenney, 442 U.S. 256 (1979)). Therefore, if the legislation neither burdens a fundamental right nor targets a suspect class, it would be upheld as long as it bears a rational relation to a legitimate governmen-tal purpose. Id. (citing Heller v. Doe, 113 S. Ct. 2637 (1993)). According to the majority, Amendment 2 failed even this very deferential rational review test. Id. at 1627. The Court found that Amendment 2 imposed a "broad and undifferentiated" burden on homosexuals simply because the group is politically unpopular, and further, by its far reaching implica-tions, could only be a result of "animus" toward the targeted class - homosexuals. Id. at 1628. For 27.1 U. Bait. L.F. 44 these reasons, the Court strongly rejected the notion that Amend-ment 2 satisfied a legitimate gov-ernmental interest and any ratio-nale for it was equally non-existent. Id. The Court sum-marized that it considered Amend-ment 2 to be simply a status based infringement on homosexuals' rights devoid of any "relationship to legitimate state interests," and as such, violated the Equal Pro-tection Clause. Id. at 1629. Justice Scalia, in a somewhat acerbic dissent, challenged the majority's decision from several perspectives. First, he found dis-tasteful the majority's creation of the principle of law that a person or group is denied equal protection under the Fourteenth Amendment when they, in order to gain an ad-vantage, are required to seek a more difficult avenue of recourse than others. Id. at 1630. Assuming that Amendment 2, in fact, disadvantaged homosexu-als instead of merely refusing to bestow special privileges upon them, the dissent next questioned how actions which disadvantage a group for conduct ruled criminal in many states could possibly be a violation of the Equal Protection Clause. Id. at 1631-32. Justice Scalia asserted that "[i]f it is con-stitutionally permissible for a State to make homosexual conduct crim-inal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct." Id. at 1631 (citing the Court's approval of such laws in Bowers v. Hardwick, 478 U.S. 186 (1986)). Next, Justice Scalia attacked the majority opinion by anal-ogizing homosexuality to polyg-amy. He pointed out that several states were required to perma-nently prohibit polygamy in order to be granted statehood, thus targeting polygamists for dis-favored status. Id. at 1635. The majority would, therefore, suggest that the "perceived social harm of polygamy is a 'legitimate concern of government,' and the perceived social harm of homosexuality is not." Id. at 1636. Finally, Justice Scalia took issue with the Court's position in what he perceived as the "culture wars." Id. at 1637. He stated that Amendment 2 was conceived to stay the decay of sexual morality and was sanctioned by a majority of Colorado residents. By striking it down, according to Justice Scalia, the Court acted out of "po-litical will" as opposed to "judicial judgment." Id. As a result of the decision in Romer v. Evans, groups that en-gage in a lifestyle that is ap-parently considered unacceptable by a majority of voters, yet possess a large and influential political lobby, will not be denied pro-tections against discrimination which are in excess of those be-stowed upon everyone else. The Court has declared that a duly en-acted referendum to a state consti-tution, which denies special pro-tections to homosexuals based on their sexual orientation, is invalid. It is apparent that the Court is attempting to protect a class which is largely unpopular. In the future, however, courts will be free to strike down what they perceive as politically incorrect legislation regardless of its position with respect to moral ideals. The Court is of the opinion that there can be no legitimate governmental in-terest advanced by legislation which promotes the moral and religious attitudes of the con-stituency but also burdens an un-popular class. It would be inter-esting to see if the Court would be Recent Developments of the same opinion if confronted with an equally passionate con-stitutional challenge to legislation which similarly burdens such morally distasteful groups such as prostitutes and polygamists. JUDGE BASIL A. THOMAS INTERNATIONAL LAW LIBRARY A fund honoring Judge Basil A. Thomas has been created to support an International Law Library in the University of Baltimore Law Library. Your contributions to assist in the establishment of this library are most welcome. Please make checks payable to: University of Baltimore Educational Fund Please send to: Judge Basil A. Thomas Law Library University of Baltimore Educational Fund 1304 St. Paul Street Baltimore, Maryland 21202-2789 Gifts to the Judge Basil A. Thomas Law Library are tax deductible as allowed by law. 27.1 U. Balt. L.F. 45 Recent Developments 27.1 U. Bait. L.F. 46 

Recent Developments: Romer v. Evans: Colorado Referendum Barring Sexual Orientation as a Discrimination Cause of Action Is Violative of the Fourteenth Amendment\u27s Equal Protection Clause

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Recent Developments: Romer v. Evans: Colorado Referendum Barring Sexual Orientation as a Discrimination Cause of Action Is Violative of the Fourteenth Amendment\u27s Equal Protection Clause

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