Homosexuality and the Federal Constitution: A Legal Analysis of the U.S. Supreme Court Ruling in Romer v. Evans

This document also available in PDF Image . The U.S. Supreme Court this term in Romer v. Evans , decided 6 to 3 that the State of Colorado violated the right of lesbians and homosexuals to Equal Protection of the Laws when it adopted, by voter referendum, Amendment 2 to the State Constitution. That amendment rescinded various state and local laws prohibiting discrimination on the basis of "homosexual, lesbian or bisexual orientation" and barred the statutory enactment of any such civil rights protection in the future. Justice Kennedy's majority opinion affirmed the judgment but not the rationale of the Colorado Supreme Court which had applied "strict scrutiny" to invalidate Amendment 2 based on a "fundamental rights" analysis. Instead, the Kennedy-led majority applied a "rationality" standard to hold that the "broad and undifferentiated disability of a single named group" was irrational and could not be justified by any legitimate state interest. Bowers v. Hardwick was not mentioned by the Romer majority. In Bowers , a decade earlier the Court refused, by a 5 to 4 vote, to find that any constitutionally recognized "liberty" interest was contravened by a Georgia State law penalizing homosexual sodomy. Bowers was a "conduct" case seeking, in effect, due process protection from state prosecution for homosexual acts rather than safeguards against discrimination by the state based on sexual "orientation." The comprehensive nature of the legal disability visited upon the "isolated group" disadvantaged by Amendment 2, and the "unique" circumstances of its enactment, may also serve to distinguish and diminish the force of Romer in other legal and statutory contexts.

The possible fragility of the Bowers precedent, and Romer's silence as to its status, could lead to future litigation on a variety of fronts.