Romer v. Evans
Decided on May 20, 1996; 517 US 620

State Constitution precluding protection of the law to a person based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships," is unconstitutional.


A. Issues Discussed: Equal protection, sexual orientation discrimination

B. Legal Question Presented:

Does Amendment 2 to the Colorado 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?" violate the Equal Protection Clause of the Fourteenth Amendment?


A. Background:

"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."

On certiorari, the US Supreme Court affirmed the judgment of the Supreme Court of Colorado.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Jean E. Dubofsky argued the cause for respondents. With her on the brief for respondents Evans et al. were Roderick M. Hills, Jr., Matthew Coles, Steven R. Shapiro, Clyde J. Wadsworth, Suzanne B. Goldberg, Jeanne Winer, Gregory A. Eurich, David H. Miller, Darlene M. Ebert, Joseph N. de Raismes III, and Walter A. Smith, Jr. John P. Worcester and Edward M. Caswall filed a brief for respondents City of Aspen et al.

Briefs of amici curiae urging affirmance were filed for the State of Oregon et al. by Theodore R. Kulongoski, Attorney General of Oregon, Thomas A. Balmer, Deputy Attorney General, Virginia L. Linder, Solicitor General, Michael D. Reynolds, Assistant Solicitor General, and Rives Kistler, Assistant Attorney General, Thomas J. Miller, Attorney General of Iowa, J. Joseph Curran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Hubert H. Humphrey III, Attorney General of Minnesota, Frankie Sue Del Papa, Attorney General of Nevada, Christine O. Gregoire, Attorney General of Washington, and Garland Pinkston, Jr., Acting Corporation Counsel of the District of Columbia; for the City of Atlanta et al. by Louise H. Renne, Dennis Aftergut, Burk E. Delventhal, Julia M. C. Friedlander, Mary Carole Cooney, Robin Joy Shahar, Neal M. Janey, Stephen H. Clark, James K. Hahn, David I. Schulman, Eunice Gibson, Paul A. Crotty, Leonard A. Kerner, Jeffrey L. Rogers, Linda Meng, Janet E. Halley, Mark H. Sidran, Henry W Underhill, Jr., and Susan S. Sher; for Affirmation: United Methodists for Gay, Lesbian and Bisexual Concerns et al. by Celeste McCollough; for the American Bar Association by George E. Bushnell, Jr.; for the American Association on Mental Retardation et al. by James W Ellis and Maureen A. Sanders; for The American Federation of State, County and Municipal Employees, AFL-CIO, by John C. Dempsey and Larry P. Weinberg; for the American Friends Service Committee et al. by Stark Ritchie; for the American Psychological Association et al. by Paul M. Smith, James L. McHugh, Jr., and Richard G. Taranto; for the Asian American Legal Defense and Education Fund et al. by Eben Moglen and Pamela S. Karlan; for the Colorado Bar Association et al. by Stephen V. Bomse, Martha Minow, and Frances A. Koncilja; for the Gay and Lesbian Lawyers of Philadelphia by Cletus P. Lyman; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Eric Schnapper, Elaine R. Jones, Theodore M. Shaw, Antonia Hernandez, Judith L. Lichtman, and Donna R. Lenhoff; for the National Bar Association by J. Clay Smith, Jr.; for the National Education Association et al. by Robert H. Chanin and John M. West; for James E. Andrews by Eric J. Graninger; and for Laurence H. Tribe et al. by Mr. Tribe, pro se, John Hart Ely, pro se, Philip Chai R. Feldblum filed a brief for the Human Rights Campaign Fund et al. as amici curiae.
Timothy M. Tymkovich, Solicitor General of Colorado, argued the cause for petitioners. With him on the briefs were Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, John Daniel Dailey and Paul Farley, Deputy Attorneys General, and Rex E. Lee and Carter G. Phillips, Special Assistant Attorneys General.

Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Charles J. Cooper, and by the Attorneys General for their respective States as follows: Jeff Sessions of Alabama, Daniel E. Lungren of California, Alan G. Lance of Idaho, Don Stenberg of Nebraska, Charles Molony Condon of South Carolina, Mark Barnett of South Dakota, and James S. Gilmore III of Virginia; for the American Center for Law and Justice Family Life Project by Jay Alan Sekulow and Keith A. Fournier; for the Christian Legal Society et al. by Steven T. McFarland, Samuel B. Casey, Gregory S. Baylor, and John K. Hulston Hall; for Colorado for Family Values by Robert K. Skolrood; for Concerned Women for America, Inc., by David J. Myers and Wendell R. Bird; for Equal Rights, Not Special Rights, Inc., by Michael A. Carvin, William L. McGrath, and Robert H. Bork; for the Family Research Council by Melissa Wells-Petry; for the Pacific Legal Foundation by Anthony T. Caso and Deborah J. La Fetra; and for the Oregon Citizens Alliance et al. by Lawrence J. Hall.


The Supreme Court held that:

"Amendment 2 violates the Equal Protection Clause.

The State's principal argument that Amendment 2 puts gays and lesbians in the same position as all other persons by denying them special rights is rejected as implausible... Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions...

The amendment is at once too narrow and too broad, identifying persons by a single trait and then denying them the possibility of protection across the board. This disqualification of a class of persons from the right to obtain specific protection from the law is unprecedented and is itself a denial of equal protection in the most literal sense.

Second, the sheer breadth of Amendment 2, which makes a general announcement that gays and lesbians shall not have any particular protections from the law, is so far removed from the reasons offered for it, i.e., respect for other citizens' freedom of association, particularly landlords or employers who have personal or religious objections to homosexuality, and the State's interest in conserving resources to fight discrimination against other groups, that the amendment cannot be explained by reference to those reasons; the Amendment raises the inevitable inference that it is born of animosity toward the class that it affects.

Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit."

The United States Supreme Court affirmed the Supreme Court of Colorado judgment.

Justice Vote: 6 Pro vs. 3 Con
  • Kennedy, A. Pro (Wrote majority opinion)
  • Stevens, J. Pro (Joined majority opinion)
  • O'Connor, S. Pro (Joined majority opinion)
  • Souter, D. Pro (Joined majority opinion)
  • Ginsburg, R. Pro (Joined majority opinion)
  • Breyer, S. Pro (Joined majority opinion)
  • Scalia, A. Con (Wrote dissenting opinion)
  • Rehnquist, W. Con (Joined dissenting opinion)
  • Thomas, C. Con (Joined dissenting opinion)

The ACLU, as co-counsel for respondents, urged affirmance of the judgment of the Supreme Court of Colorado; the Supreme Court affirmed in a 6-3 vote, giving the ACLU an apparent win.