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Romer v. Evans, United States Supreme Court (20 May 1996)

Procedural Posture

Respondents (who included LGBT persons and municipalities) brought litigation against State authorities in a State trial court challenging the adoption of Amendment 2 to the Constitution of the State of Colorado. The trial court granted a permanent injunction against enforcement of Amendment 2. The Colorado Supreme Court affirmed. The State of Colorado appealed to the United States Supreme Court.


In a State-wide referendum, Colorado voters had adopted Amendment 2, which precluded 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”.


Whether Amendment 2 violated the Equal Protection guarantee of the United States Constitution.

Domestic Law

Colorado Constitution.

Constitution of the United States, 14th Amendment (Equal Protection).

Bowers v. Hardwick, United States Supreme Court, 1986 (upholding constitutionality of State law criminalising sodomy).

Reasoning of the Court

The State argued that Amendment 2 did nothing more than deny “special rights” to homosexuals. The Colorado Supreme Court, however, found that the immediate objective of Amendment 2 was to repeal existing laws that prohibited discrimination on the basis of sexual orientation. The Supreme Court adopted this interpretation of the amendment. “The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.”

The 14th Amendment guaranteed “equal protection of the laws” for all persons. In order to survive an Equal Protection challenge at the lowest level of scrutiny (rational basis), a legislative classification had to bear a rational relation to some legitimate end. This amendment failed the test. First, the Supreme Court held, it imposed “a broad and undifferentiated disability on a single named group”, which was an invalid form of legislation. Second, “its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus towards the class if affects; it lacks a rational relationship to legitimate State interests”.

With regard to the first point, Amendment 2 identified persons by a single trait and then denied them protection across the board. The disqualification of a “class of persons from the right to seek specific protection of the law” was unprecedented, observed the Court. “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”

With respect to the second point, the amendment invited the inevitable inference that it was born of animosity. “If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate State interest.”

The judgment of the Colorado Supreme Court was affirmed.


Justice Scalia focused on whether there was a legitimate rational basis for the law. He argued that the amendment was an attempt by Coloradans to preserve “traditional American moral values”. In his view, the majority was wrong to equate opposition to homosexuality with racial or religious bias. He relied heavily on the 1986 case Bowers v. Hardwick, in which the Supreme Court held that a State law criminalising sodomy was constitutional. He asked: “If it [is] constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavouring homosexual conduct?” Since the amendment targeted sexual orientation and not just conduct, Justice Scalia added: “If it is rational to criminalise conduct, surely it is rational to deny special favour and protection to those with a self-avowed tendency or desire to engage in the conduct?” Where the majority saw “animosity”, Justice Scalia saw “morality”. Thus, he reasoned, the only animus at work was “moral disapproval of homosexual conduct”, the same sort of moral disapproval that justified criminalising murder or polygamy. Justice Scalia argued that the Court’s reasoning would invalidate State laws prohibiting polygamists, “unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals”.  

 Romer v. Evans, United States Supreme Court (full text of judgment, PDF)