517 U.S. 620 (1996)
In 1992 Colorado voters approved Amendment 2 to the state constitution by a 53.4 percent to 46.6 percent margin.1 The amendment responded to ordinances enacted in Aspen, Boulder, and Denver that prohibited discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions.2
Amendment 2 provided that neither the state nor any of its agencies, political subdivisions, or municipalities could enact, adopt, or enforce any statute, regulation, ordinance, or policy whereby homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships would constitute or entitle any person to minority status, quota preferences, protected status, or a claim of discrimination.3 The amendment immediately repealed existing municipal ordinances in Aspen, Boulder, and Denver and barred all future legislative, executive, or judicial action at any level of state or local government that would protect persons based on those characteristics.4 It also nullified a statewide executive order prohibiting employment discrimination against state employees on the basis of sexual orientation and specific antidiscrimination policies at state colleges.5
Homosexual and bisexual individuals together with the three affected municipalities filed suit in Colorado state court against Governor Roy Romer, the Attorney General, and the State of Colorado.6 The plaintiffs asserted that Amendment 2 violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.7
The trial court granted a preliminary injunction against enforcement.8 The Colorado Supreme Court affirmed the injunction and remanded for further proceedings in Evans v. Romer, 854 P.2d 1270 (1993).9 On remand the trial court found that Amendment 2 failed strict scrutiny, permanently enjoined its enforcement, and entered final judgment for the plaintiffs.10 The Colorado Supreme Court affirmed that judgment in Evans v. Romer, 882 P.2d 1335 (1994).11
The United States Supreme Court granted certiorari in 1995 and heard argument on October 10, 1995.12
Whether Amendment 2 to the Colorado Constitution violates the Equal Protection Clause of the Fourteenth Amendment?13
The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another.14 If a law neither burdens a fundamental right nor targets a suspect class, the Court will uphold the legislative classification so long as it bears a rational relation to some legitimate end.15 A law that imposes a broad and undifferentiated disability on a single named group, and whose sheer breadth is so discontinuous with the reasons offered for it that the law seems inexplicable by anything but animus toward the class it affects, lacks a rational relationship to legitimate state interests.16
Yes. In 1992 Colorado voters approved Amendment 2 by a 53.4 percent to 46.6 percent margin. The amendment responded to ordinances enacted in Aspen, Boulder, and Denver that prohibited discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions. Amendment 2 immediately repealed those existing municipal ordinances and barred all future legislative, executive, or judicial action at any level of state or local government that would protect persons based on homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships.17
It also nullified a statewide executive order prohibiting employment discrimination against state employees on the basis of sexual orientation and specific antidiscrimination policies at state colleges. Homosexual and bisexual individuals together with the three affected municipalities filed suit in Colorado state court against Governor Roy Romer, the Attorney General, and the State of Colorado, asserting that Amendment 2 violated the Equal Protection Clause.18 The trial court granted a preliminary injunction against enforcement. The Colorado Supreme Court affirmed the injunction and remanded for further proceedings.19 On remand the trial court found that Amendment 2 failed strict scrutiny, permanently enjoined its enforcement, and entered final judgment for the plaintiffs. The Colorado Supreme Court affirmed that judgment.20 The United States Supreme Court granted certiorari and now affirms on equal protection grounds.21
Amendment 2 places homosexuals in a solitary class by withdrawing specific legal protections from the injuries caused by discrimination that others enjoy or may seek without constraint.22 Its exceptional breadth cannot be explained by any legitimate purpose such as conserving resources or protecting freedom of association and instead reflects animus toward the class it affects.23
Amendment 2 violates the Equal Protection Clause of the Fourteenth Amendment because it classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.24
Related opinions on this issue
Joined by Rehnquist, C. J., And Thomas, J.
Justice Scalia dissented, arguing that the Court mistook a Kulturkampf for a fit of spite.25 He maintained that Amendment 2 was a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.26 Scalia contended that moral disapproval of homosexual conduct is a legitimate basis for legislation, consistent with Bowers v. Hardwick which upheld the constitutionality of criminalizing homosexual conduct, and that the amendment does not manifest a bare desire to harm but rather seeks to prevent special protections.27
He viewed the majority's decision as an act of political will rather than judicial judgment that imposes the views of the elite lawyer class on a democratic choice left to normal political processes.28
Whether Amendment 2 merely places homosexuals in the same position as all other persons by denying them special rights?29
The amendment's language is far from limiting.30 It not only imposes a special disability upon those persons who would seek legislation to protect their rights but also prohibits them, and only them, from seeking specific protection of the law.31 The Colorado Supreme Court held that Amendment 2 has the effect of prohibiting gays, lesbians, and bisexuals from seeking specific protection of the law and fences them out from the political process, putting homosexuals in a solitary class.32
No. The Colorado Supreme Court held that Amendment 2 has the effect of prohibiting gays, lesbians, and bisexuals from seeking specific protection of the law and fences them out from the political process.3334 The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination in both the private and governmental spheres.35 It repealed all existing statutes, regulations, and policies that protected gays, lesbians, and bisexuals from discrimination in every important area of life, including employment, housing, public accommodations, education, and health and welfare services.36 It also forbade the adoption of any future statutes, regulations, or policies that would protect gays, lesbians, and bisexuals from discrimination.37
Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint, and they can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution.38 This is so no matter how local or discrete the harm and no matter how public and widespread the injury.39 These are protections taken for granted by most people either because they already have them or do not need them.40
Amendment 2 does not merely place homosexuals in the same position as all other persons by denying them special rights but instead imposes a special disability upon homosexuals alone.41
Related opinions on this issue
Joined by Rehnquist, C. J., And Thomas, J.
Justice Scalia dissented on this point as well, asserting that the amendment prohibits special treatment of homosexuals and nothing more.42 He argued that it would be strange to say that it is animus to have a bare desire that government not adopt a policy that accords special favor to homosexuals.43 Scalia emphasized that the amendment is designed merely to prevent the adoption of special programs favoring homosexuals.44
General laws prohibiting arbitrary discrimination remain available, so the measure does not put homosexuals in a solitary class but merely denies them particular favored status.45
Whether Amendment 2 bears a rational relationship to a legitimate governmental interest?46
A law must bear a rational relationship to a legitimate governmental purpose.47 Even in the ordinary equal protection case asking if the law rationally furthers a legitimate governmental interest, a law must bear a rational relationship to a legitimate governmental purpose.48 Amendment 2's reach is not only too broad and too narrow to be explained by the State's interest in preventing the government from adopting and enforcing policies that are perceived to be burdensome to the general public.49 It is so discontinuous with that interest that it cannot be explained on that basis.50
No. The state offered interests in protecting the liberty of each person to make deeply personal decisions and in conserving resources to fight discrimination against other groups.5152 The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality.53 Colorado also cites its interest in conserving resources to fight discrimination against other groups.54 The breadth of the amendment is so far removed from these particular justifications that it is impossible to credit them.55
Amendment 2 identifies persons by a single trait and then denies them protection across the board.56 The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.57 The absence of precedent for Amendment 2 is itself instructive.58 It is a status-based enactment divorced from any factual context from which a relationship to legitimate state interests could be discerned.59
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.
Amendment 2 does not bear a rational relationship to a legitimate governmental interest because its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects.60
Related opinions on this issue
Joined by Rehnquist, C. J., And Thomas, J.
Justice Scalia dissented, maintaining that there was a legitimate rational basis for the substance of the constitutional amendment in the prohibition of special protection for homosexuals.61 He argued that it is unsurprising that the Court avoids discussion of this question since the answer is so obviously yes, citing Bowers v. Hardwick as the most relevant case.62 Scalia asserted that if it is constitutionally permissible for a State to make homosexual conduct criminal, it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. A fortiori it is permissible to adopt a provision merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct.
He viewed the amendment as an eminently reasonable effort to preserve traditional American moral values through democratic means that Americans have employed before.63