Gay Rights

• Publication year: 2021
• Citation: Vol. 76

76 Nebraska L. Rev. 352. Gay Rights

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Applications to Gay Rights and Beyond, Romer v. Evans, 116 S. Ct. 1620 (1996)

TABLE OF CONTENTS

I. Introduction 352
II. Romer v. Evans 354
A. Facts and Background 354
B. The Opinions 358
1. Majority Opinion 358
2. Dissenting Opinion 359
III. Disagreements in Romer v. Evans 361
A. Basic Protections or Special Rights 361
B. Constitutional Tradition: Davis v. Beason 363
C. The Animus Argument and Bowers v. Hardwick . . . 366
IV. The Practical Impact of the Court's Decision 368
V. Conclusion 370

I. INTRODUCTION

As discrimination law has evolved in this country, homosexuals have joined the increasing number of identifiable groups seeking protection through antidiscrimination ordinances.(fn1) The homosexual community's success in adding sexual orientation to many state and local antidiscrimination laws(fn2) has provoked a heretofore unseen response:

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laws such as amendments to state constitutions or city charters that forbid inclusion of homosexuality in antidiscrimination laws.(fn3)

The latest enactment of these "trumping" laws was Colorado's Amendment Two.(fn4) Amendment Two prohibited any level of Colorado government from enacting or enforcing any law granting protected status on the basis of homosexuality. Specifically, it provided:

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.(fn5)

Amendment Two was immediately challenged in the District Court for the City and County of Denver as violative of the Equal Protection Clause of the Fourteenth Amendment(fn6) and was subsequently struck down by the Colorado Supreme Court.(fn7) The State of Colorado appealed, and the United States Supreme Court affirmed the Colorado

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Supreme Court's decision, although under a different equal protection analysis than that utilized by the Colorado Supreme Court.(fn8)

This Note analyzes the decision of the United States Supreme Court in Romer v. Evans and predicts its practical impact. First, the majority and dissenting opinions and the major arguments on both sides are summarized. Second, these arguments are analyzed as applied to homosexual groups, as well as other groups that potentially may be affected. Finally, this Note predicts the impact that Romer will have on future attempts to "trump" state or local antidiscrimina-tion laws, as applied to homosexuals or other identifiable groups.

II. ROMER V. EVANS

Each court that considered the constitutional challenge to Amendment Two analyzed it under the Equal Protection Clause. Equal protection analysis differs depending on the type of legislation or state action involved. Generally, courts use three different standards of review when legislation is challenged under the Equal Protection Clause. Strict scrutiny, the highest standard, is used only when legislation classifies by a "suspect" class or infringes a fundamental right.(fn9) To survive strict scrutiny, a law must be narrowly tailored to meet a compelling state interest. Intermediate scrutiny, used when a law classifies by a "quasi-suspect" class, requires a substantial relation to an important state interest.(fn10) The lowest standard of review, often referred to as the rational basis test, is used in all other circumstances and requires only some rational relation to a legitimate state interest. Determining the applicable level of review is critical, as decisions often turn on the standard of review that is applied.

A. Facts and Background

Immediately following its enactment, Amendment Two was challenged in district court.(fn11) The plaintiffs to the suit included a group of homosexual persons, municipalities that had enacted antidiscrimina-tion ordinances, and other governmental entities affected by Amendment Two. These plaintiffs filed suit in the District Court for the City and County of Denver seeking a declaration of invalidity of Amend

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ment Two and an injunction against its enforcement.(fn12) The plaintiffs contended that Amendment Two violated a number of constitutional rights, primarily the rights to equal protection of the laws under the Fourteenth Amendment and freedom of expression under the First Amendment.(fn13)

The district court rejected the plaintiffs' request for an expedited hearing on the merits, but instead granted a preliminary injunction.(fn14) Under Colorado law, a trial court may issue an injunction if the moving party meets a six-part test and, as a threshold requirement, clearly demonstrates that injunctive relief is necessary to protect an existing fundamental constitutional right.(fn15) The district court held that the plaintiffs met this threshold requirement because Amendment Two violated a fundamental right, primarily not to have the State endorse and foster private biases.(fn16) Upon a further determination that the plaintiffs met all of the elements of the six-part test, the court issued the preliminary injunction.(fn17)

The State of Colorado appealed the preliminary injunction to the Colorado Supreme Court (Evans I), alleging that the district court erred in finding that the plaintiffs met the threshold requirement to obtain an injunction.(fn18) Specifically, the State of Colorado complained that the fundamental right relied upon by the district court was nonexistent.(fn19) In response, the plaintiffs contended that Amendment Two violated the fundamental right of gays and lesbians to participate in the political process.(fn20) The Colorado Supreme Court struck down the amendment.(fn21) In reaching its conclusion, the court applied a series of United States Su

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preme Court decisions involving voting rights,(fn22) discriminatory reapportionment of political power,(fn23) and the rights of minority political parties.(fn24) It relied most heavily, however, on a series of cases involving attempts to limit the ability of certain groups to implement desired legislation through normal political processes.(fn25)

Two such cases in particular are applicable to an analysis of Amendment Two. First, in Hunter v. Erickson,(fn26) the United States Supreme Court invalidated an Akron, Ohio charter amendment that required fair housing ordinances to be approved by a citywide referendum. All other city ordinances could be approved by a vote of the city council. The Supreme Court held that the amendment violated the equal protection rights of racial minorities by placing special burdens on them before they could participate in the governmental process.(fn27)

Second, in Washington v. Seattle School District No. 1,(fn28) the constitutionality of a Washington initiative prohibiting school districts from using mandatory busing as a means to affect school desegregation was questioned. Relying on Hunter, the Washington Court held that the initiative impermissably interfered with the political process and unlawfully burdened the efforts of minority groups to secure public benefits.(fn29)

One common thread running through Hunter and Washington is that both of the invalidated laws impermissibly affected the rights of racial minorities. Citing James v. Valtierra,(fn30) the State of Colorado argued that Amendment Two should be upheld because the Hunter holding was limited to racial issues.(fn31) In James, the Supreme Court upheld a California constitutional amendment requiring a community vote for approval of any new low-rent housing project. The Court declined to find that poor individuals' fundamental rights to participate

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in the political process had been violated, stating that the initiative was not aimed at racial minorities.(fn32)

The Colorado Supreme Court rejected this argument, finding James to be "best understood as a case declining to apply suspect class status to the poor, and not as a limitation on Hunter."(fn33) Holding that Amendment Two violated a fundamental right of political participation under Hunter (and thus warranting strict scrutiny), the case was remanded to the district court to determine if Amendment Two was narrowly tailored to serve a compelling state interest.(fn34)

On remand, the district court considered six compelling state interests presented by Colorado as justifications to uphold Amendment Two.(fn35) Ultimately, the court held that Amendment Two was not narrowly tailored to any compelling state interest offered and permanently enjoined its enforcement.(fn36)

On appeal (Evans II), the Colorado Supreme Court affirmed the district court's application of strict scrutiny, noting that Colorado failed to offer any arguments for a lesser standard of scrutiny that the Colorado Supreme Court had not previously rejected in Evans I.(fn37) The court also affirmed the district court's holding that Amendment Two failed to satisfy strict scrutiny,(fn38) finding that the unconstitutional portions of the amendment were not severable from the remainder.(fn39) The court further rejected the State's argument that Amendment Two was a valid exercise of state power under the Tenth Amendment.(fn40)

The United States Supreme Court subsequently granted certiorari.(fn41)

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B. The Opinions

1. Majority Opinion

The majority opinion in Romer v. Evans, written by Justice Ken-nedy and joined by five other Justices,(fn42) held Amendment Two violative of the Equal Protection Clause...