Romer v. Evans 1996

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Romer v. Evans 1996

Petitioner: Roy Romer, Governor of Colorado, and others

Respondent: Richard G. Evans and others

Petitioner's Claim: That the Colorado Supreme Court erred in striking down a state constitutional amendment prohibiting any government efforts to protect homosexuals against discrimination.

Chief Lawyers for Petitioner: Timothy M. Tymkovich

Chief Lawyers for Respondent: Jean E. Dubofsky

Justices for the Court: Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor, David H. Souter, John Paul Stevens

Justices Dissenting: Chief Justice William H. Rehnquist, Antonin Scalia, Clarence Thomas

Date of Decision: May 20, 1996

Decision: Agreeing with the Colorado Supreme Court, ruled in favor of Evans that the state amendment prohibiting protections of gay and lesbian rights was unconstitutional.

Significance: First victory of gay and lesbian civil rights in the U.S. Supreme Court. The Court gave homosexuals constitutional protection against government or private discrimination.

Gay men and lesbians number in the millions and are found in every sector of American society—doctors, nurses, computer whizzes, musicians, athletes, teachers, construction workers, dads, moms, and teenagers. The terms gay and lesbian refer to people who are sexually attracted to and prefer persons of the same sex. Though the term gay can refer to either men or women, gay usually is used in referring to men and lesbian always refers to women. Homosexual is another term which refers to both gay men and lesbians.

Throughout most of America's history, homosexuals have kept their sexual orientation (the sexual preference of an individual for one sex or the other) a secret or "in the closet." Secrecy was important because homosexuality has been considered a criminal offense in state and local laws, and religious organizations condemned the behavior. However, a fight in a New York bar in 1969 marked the beginning of a nationwide "coming out."

The Coming Out

"Coming out" is the name gay and lesbians give the process of identifying, accepting, and then disclosing their sexual orientation. On June 27, 1969 in New York, police raided the Stonewall Inn, a gay bar located in Greenwich Village. Raiding gay bars was not an uncommon police activity all across America. However, this time the people inside the bar resisted arrest and clashed with the city police. For three nights New York gays rioted, releasing years of suppressed frustration over the discrimination they experienced daily. Especially for younger gay men and women, Stonewall became a symbol of a new attitude of openly "coming out." Resisting negative stereotyping (fixed mental picture or a fixed attitude toward something) and legal and social discrimination suddenly became more common.

Gay Rights Movement is Born

Every year after the Stonewall riots, homosexuals marched in New York City to remember the event. Gay men and lesbians began to seek legal and social equality in America. The federal government had moved to prohibit discrimination on the basis of race, religion, and national origin, but had yet to take a stand on sexual orientation. The movement, which had become known as the gay rights movement, grew during the 1970s and 1980s. Demanding fair legal treatment, between 25,000 and 40,000 gay rights activists marched in San Francisco in November of 1978 and 75,000 strong marched in Washington, D.C. in October of 1979, the first National March on Washington for Lesbian and Gay Rights.

Despite some gains by the movement, in 1986 the U.S. Supreme Court dealt it a major setback. In Bowers v. Hardwick, the Court refused to grant a constitutional right of privacy for homosexual acts carried out in private homes. State laws thus continued to criminalize such acts. In response, over half-a-million gay men and lesbians rallied in Washington, D.C. in 1987 in another National March on Washington.

In the 1990s, homosexuals and their lifestyle faced growing opposition from some religious groups and conservatives concerned about the nation's moral values. A decade after Bowers the Supreme Court would face gay rights issues again in Romer v. Evans (1996). This time the legal battleground was set in the state of Colorado.

Amendment 2—No Civil Rights for Gays

In support of gay rights, several communities in Colorado, including Denver, Aspen, and Boulder, passed local laws banning discrimination in employment, housing, and education on the basis of sexual orientation. By 1992 a group, Colorado for Family Values, concerned that the growing acceptance of homosexual lifestyles would harm American traditions and morals, led an effort against the communities' anti-discrimination laws. They proposed a state constitutional amendment to repeal (cancel) the laws and stop any future efforts to legally protect homosexuals. Following a petition drive, the amendment was placed on the November ballot in 1992.

The ballot measure, known as Amendment 2, passed and became part of the Colorado state constitution. Amendment 2 prohibited all state and local governments and courts to take any action designed to protect persons based on their "homosexual, lesbian, or bisexual [sexually oriented to both males and females] orientation, conduct, practices or relationships." As originally intended, it required the immediate repeal (to abolish) of all existing laws barring discrimination based on sexual preference and allowed discrimination against gay and lesbians in areas such as employment, insurance, housing, and welfare services.

Immediately, eight individuals, including gay municipal worker Richard Evans, and the cities of Denver, Boulder, and Aspen, which had their gay rights laws repealed, challenged Amendment 2 in the state courts. Finally, in 1994 the Colorado Supreme Court ruled that Amendment 2 could not be enforced. It found Amendment 2 prevented one "class" of persons with non-traditional sexual orientations composed of gays, lesbians, and bisexuals from using normal political procedures to protect themselves from discrimination. One normal procedure which all other groups could follow would be to seek passage of a law to correct injustices. Now this named group of persons would have to amend the state constitution before such corrective laws could even be considered, not a normal procedure. The amendment would effectively end any civil rights for gays. Furthermore, the state supreme court could find no compelling (very important) reason demonstrating the government's need for Amendment 2. Colorado, whose governor was Roy Romer, appealed the ruling to the U.S. Supreme Court which agreed to hear the case.

"This Colorado Cannot Do"

Before the U.S. Supreme Court, Colorado argued that Amendment 2 merely took away the "special rights" or a special protection the local laws had granted to homosexuals. The Court in a 6-3 decision strongly disagreed with the state of Colorado. Though following a different line of reasoning than the Colorado Supreme Court, the Court upheld the previous decision that Amendment 2 was unconstitutional (does not follow the intent of the U.S. Constitution) and, therefore, unenforceable.

Justice Anthony M. Kennedy wrote the powerfully worded majority opinion. Addressing the so-called "special protections" argument, Kennedy concluded the special protections were not special at all but merely "the safeguards that others enjoy. . . These are protection taken for granted by most people either because they already have them or do not need them. . . " Instead, Kennedy pointed out these safeguards "are protections against exclusion from an almost limitless number of transactions and endeavors [such as employment and housing] that constitute ordinary civic life [life as a citizen] in a free society." In other words, these safeguards are protection against discrimination and to take them away from gay people "imposes a special disability upon those persons alone.

Kennedy identified the real question before the Court. Did Amendment 2 violate the Fourteenth Amendment's Equal Protection Clause that guarantees that no state shall deny to any person the "equal protection of the laws?" The Court found that Amendment 2 did indeed violate the clause. The violation was such a sweeping, across the board denial of gay peoples' rights of protection. The court concluded that it could only have been passed with the goal of harming a politically unpopular group. The Court could identify no "legitimate" (honest) government need or reason for its passage. Amendment 2 is unconstitutional, Kennedy commented, because any law that makes it "more difficult for one group of citizens than all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal [real or concrete] sense."

Kennedy forcefully ended by stating, "We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make then unequal to everyone else. This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws."


L ambda Legal Defense and Education Fund, founded in 1972, is dedicated to achieving full recognition of the civil rights of gay men, lesbians, and people with HIV/AIDS. Lambda's legal staff of attorneys together with a network of volunteer Cooperating Attorneys, combat discrimination based on sexual orientation. Working on an average of fifty cases at any one time, issues include a wide variety of topics such as discrimination in employment, housing, the military; HIV/AIDS-related cases, equal marriage rights, parenting, "sodomy" laws, and anti-gay ballot initiatives. Lambda also provides legal services to homosexuals and encourages homosexuals to join the legal profession.

The National Gay and Lesbian Task Force (NGLTF), founded in 1973, supports local communities in organizing advocacy groups for gays and lesbians. The NGLTF strengthens gay and lesbian movements at the state and local levels at the same time connecting these activities to a national scene. At the national level it works to promote legislation to enhance gay and lesbian civil rights. Headquartered in Washington, D.C., it serves as a national resource center.

Homosexual organizations applauded and cheered the decision saying it was the most important victory ever in the struggle for gay men and lesbians' civil rights. Finally, the U.S. Supreme Court had given constitutional protection against government or private discrimination based on sexual orientation. Groups opposed to gay rights, bitterly disappointed with the ruling, said it would greatly heighten tension between those for and against gay rights.

Suggestions for further reading

Cohen, Susan, and Daniel Cohen. When Someone You Know Is Gay. New York: Laurel-Leaf Books, 1989.

Lambda Legal Defense and Educational Fund. [Online] Website: (Accessed on July 31, 2000).

National Gay & Lesbian Task Force. [Online] Website: (Accessed on July 31, 2000).

Nava, Michael, and Robert Dawidoff. Created Equal: Why Gay Rights Matter to America. New York: St. Martin's Press, 1994.

Robson, Ruthann. Gay Men, Lesbians, and the Law. New York: Chelsea House Publishers, 1997.

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Romer v. Evans 1996

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