Romer v. Evans

Romer v. Evans was a 1996 US Supreme Court case which helped establish protection against discrimination based on homosexuality.

Subject of litigation
Colorado as a state became deeply divided on the issue of gay rights in 1992. Denver and Aspen, two of the state's more progressive cities, had passed robust laws banning discrimination on the basis of sexual orientation - that is, firing an employee for being gay was no longer a valid reason, etc. In this, the two cities followed the lead of New York City, and many other metropolises.

However, while these two cities contained large liberal populations, Colorado as a whole remained very conservative, and so narrowly passed "Amendment 2" to the Colorado Constitution, which would render null & void any city or state law prohibiting discrimination against homosexuals. In essence, Amendment 2 made it illegal for any level of Colorado government to protect gay citizens from discrimination.

Colorado foresaw a legal challenge to the amendment. As such, they based the amendment on two "rational bases." The first was the idea that the law ought not force employers, landlords, etc., to associate with those with whom they would rather not - the law can't mandate social acceptance, in other words. The second was that Colorado would rather reserve its funds to protect against race & gender discrimination.

The amendment was immediately challenged as violative of the Equal Protection Clause, and quickly found its way to certiorari and a Supreme Court hearing on the merits.

Holding of the Court
On reviewing the offered "rational bases" for regulation, the Court rejected both, nominally applying rational basis review. Justice Sandra Day O'Connor wrote, for the court, that the first reason offered by the state - on the basis of class - necessarily fails, since as Alexis de Tocqueville wrote, and as Brown v. Board of Education made law, "there is no class here." That is to say that any law that bases its existence on a desire to promote a class structure will immediately fail. She continued to say that the preservation of administrative resources is also insufficient reason to regulate.

Finding Colorado's offered rational bases without merit, O'Connor concluded that the only reason for Amendment 2 was "animus laid bare," or a mere desire to stigmatize without any real benefit for its citizens, and a real detriment to the stigmatized group. O'Connor wrote that this very idea was repugnant to the Constitution.

Fallout, and interpreting Romer
The Court says that Amendment 2 fails rational basis review. But does it really? Rational basis review allows almost any "state interest," pretextual or not, to count as sufficient for legislative classification. Thus, even an almost farcical motive for classification will generally pass muster (Carolene Products says as much). Under this light test, it is argued, Amendment 2 would pass, since even if the reasons were pretextual, rational basis would still not invalidate them.

As a result of this problem, commentators have suggested that Romer represents something more revolutionary than it appears, at first. Perhaps Romer stands for the principle that, when classifying on the basis of sexual orientation, rational basis is not enough. Rather, in addition to a rational basis, the reviewing Court must also ensure that the offered rationale is not pretextual to "animus laid bare." This is a much more robust inquiry, dubbed "rational basis with teeth," that sounds like a midpoint between rational basis review and intermediate scrutiny. If it is, it may be a suggestion that the Court would be willing, in the future, to require classification on the basis of sexual orientation to pass strict scrutiny. The Court has before offered "midway" cases, after all, in the run-up to making a sweeping doctrinal change, as the case Reed v. Reed presaged the application of strict scrutiny to gender with a similarly vague form of "rational basis" review.

Many have suggested that Romer makes little sense in a pre-Lawrence world. After all, so long as sodomy or other homosexual sex acts were illegal, could not the state find a "rational basis" to discriminate against homosexuals on the basis of their imputed engagement in felonious acts (sodomy)? Indeed, this reason should pass the light review guaranteed by rational basis review. As such, after Lawrence, when anti-sodomy statues were struck down, Romer makes much more sense, since the criminal stigma of homosexuality was wholly removed by Lawrence, at least at law.

The possibility of Romer's revolutionary nature has been confined somewhat by lower court holdings. In Florida, the court in Lofton, upheld a ban on gay adoption without engaging in the "pretext" analysis that a broader reading of Romer would require, and instead ending the inquiry with rational basis review. However, this case was very narrowly decided, and only denied rehearing by a vote of 6 to 6. The real meaning of Romer is thus unsettled, and unlikely to be settled in the near future, as the Court often adopts a "wait and see" approach after major social changes, before instigating another.

Dissent
Associate Justice Antonin Scalia wrote a dissent to the case, railing at length against the "homosexual agenda." He also reminded the Court of its narrow role in resolving social conflicts, and took a narrow definition of the Fourteenth Amendment as protecting only against discrimination on the basis of race and gender. Since sexual orientation was neither, he said, the legal inquiry was over, and the Federal constitution was silent. The state constitutional amendment failed rational basis review.