In 1992, Colorado citizens voted in favor of a state constitutional amendment that would have imposed a statewide prohibition against protection from discrimination based on sexual orientation. The U.S. Supreme Court declared the amendment unconstitutional, setting the stage for later decisions that would find laws prohibiting consensual homosexual sodomy to be unconsitutional.
After the gay and lesbian revolution of the 1970’s faded, antigay backlash swept across the United States in the form of the Christian Right in the 1980’s, with conservative politicians supporting the trend. By the 1990’s, debates about individual issues, most related to some specific questions, began to dominate the news. Some of the most prominent issues addressed questions of employment, marriage, and sexual privacy. Many political battles were fought at the local level, not a few of which were swept into the national debate. Gay, lesbian, bisexual, and transgender (GLBT) rights activists argued that sexual orientation should not affect a person’s ability to marry or to secure housing and employment. Opponents advanced arguments against GLBT rights: that only a heterosexual orientation is moral and that supporting GLBT goals promotes immoral behavior; that sexual orientation should be kept private, and that those who choose to publicize a GLBT orientation do not deserve special treatment because of it; and that the rights the GLBT community expects go beyond the protections offered to other citizens, and it is unfair to protect one group more than others.
In the early 1990’s in Colorado, voters, by a narrow margin (53.4 percent), accepted an anti-gay rights amendment to the state constitution, designed to rebuff laws in Aspen, Denver, and Boulder that already existed to protect gay rights. Amendment 2
GLBT groups throughout the state immediately protested that the amendment would bring Colorado’s constitution into conflict with the U.S. Constitution and filed suit to prevent the amendment from being enacted. Colorado governor Roy Romer was named as the primary defendant. The fight against Amendment 2 was led by eight individuals, including Richard G. Evans, in addition to the Boulder Valley School District, the city and county of Denver, the cities of Boulder and Aspen, and Aspen’s city council. These groups opposed the Colorado amendment based on several factors in the First and Fourteenth Amendments to the U.S. Constitution.
They also believed that Amendment 2, because it was directed at all levels of government, hampered the ability of gays, lesbians, and bisexuals (transgender individuals were not named specifically in the amendment) to seek redress from the government, a violation of the First Amendment to the U.S. Constitution. Finally, because it would have prevented governments from enforcing policies prohibiting discrimination based on sexual orientation, the plaintiffs argued the law violated the due process clauses of both the U.S. and Colorado constitutions.
On January 15, 1993, Colorado district court judge Jeffrey Bayless
Rovera thus required the amendment to face the “strict scrutiny” test. Under this test, a law must advance a compelling state interest in order to be allowable. He returned the case to the district court, where Judge Bayless ruled on December 14, 1994, that the law did not advance any such compelling state interest and that it was therefore unconstitutional. When the state appealed once more to the state supreme court, that group upheld the district court ruling, declaring Amendment 2 unconstitutional on October 11, 1994. The state of Colorado, therefore, had no further option but to appeal the case to the U.S. Supreme Court.
The oral arguments were presented to the Court on October 10, 1995, nearly a year to the day after the Colorado state supreme court ruling. During the questioning of the state’s counsel, the justices asked some very pointed questions about the amendment’s vague language and its singling out a specific group of people and preventing them from having redress from prejudice except through constitutional amendment. The verdict was rendered on May 20, 1996, with the court voting 6-3 to strike the amendment. In the Supreme Court’s decision, Justice Anthony Kennedy took a slightly different tack from that of Colorado. Whereas Colorado’s supreme court had required the amendment to meet the strict scrutiny test, Justice Kennedy declared that the amendment failed to demonstrate a rational relationship to a genuine government interest. Kennedy stated that the amendment did indeed single out homosexuals and denied them the same protections of law enjoyed by other persons. Although Justice Antonin Scalia wrote a dissent, he was joined by only a minority of the Court, and Amendment 2 was prohibited from being enacted.
The Romer case is significant for both legal and social reasons. Legally, it set a precedent that Cincinnati activists attempted to use to overturn a similar ordinance. However, because the Cincinnati ordinance was local, the Sixth Circuit Court of Appeals ruled it to be unaffected by the Romer decision, and the Supreme Court refused to hear the case. Nationally, Romer set a precedent discussed in a later Supreme Court decision. In his dissent, Scalia observed that the decision in Romer was entirely contrary to the Court’s decision in the 1986 Bowers v. Hardwick
At the social level, Romer v. Evans was significant for entirely different reasons. The language of both Kennedy’s majority opinion and Scalia’s dissent demonstrated that the real argument over Amendment 2 was over the perceived morality of homosexuality. Although the state framed its case in terms of preventing homosexuals from having what it dubbed special rights, Kennedy bluntly stated that the amendment would have effectively singled out homosexuals for discrimination. Moreover, Scalia supported the amendment not on the grounds that it allowed the state to prevent itself from giving special rights to one group but because he felt it was acceptable for Colorado voters to use legal means to protect what he deemed traditional sexual social behavior. Thus the Supreme Court’s decision, even the dissent, affirmed the activists’ position that the amendment was aimed at allowing antigay discrimination.
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Chauncey, George. Why Marriage? The History Shaping Today’s Debate over Gay Equality. New York: Basic Books, 2004. Examines the reasons for the GLBT rights debate to center on gay marriage, from the perspective of a gay rights activist. -
Gallagher, John, and Chris Bull. Perfect Enemies: The Religious Right, the Gay Movement, and the Politics of the 1990’s. New York: Crown, 1996. Examines the contrasting perspectives in conservative religious movements and the GLBT rights movements in the context of the unique political situation of the 1990’s. -
Keen, Lisa, and Suzanne B. Goldberg. Strangers to the Law: Gay People on Trial. Ann Arbor: University of Michigan Press, 1998. Discusses the politics behind gay rights struggles, with a focus on the law. Includes a section regarding the debate comparing legal rights against “special” rights as well as the Romer v. Evans case.
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