Other Candidates for heightened scrutiny Romer V. Evans – Special rights for gays

• Kennedy 1996. SCt struck down a Colorado constitutional amendment that would have prevented the state or any of its cities from giving certain protections to gays or lesbians. SCt found that the measure flunked “mere rationality” review on two separate grounds: there was no legitimate state interest in fact being served, and the means chosen by the state were not rationally related to the (possibly legitimate) interest that the state asserted.

• Facts. Colorado provision, known as “Amendment 2,” modified the Colorado constitution to provide that neither the state nor any subdivision (including state agency, city or school district) shall “enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status, or claim of discrimination.

• Bans anti-discrimination laws. Main practical impact of Amendment 2 was that it prevented both the state legislature and any city from passing statutes or ordinances that would protect gays and lesbians from discrimination. For instance, the cities of Aspen, Boulder and Denver had all passed ordinances barring discrimination against gays in housing, employment, education, public accommodations, and the like; each of these ordinances would apparently have been wiped out by Amendment 2. Only by re-amending the state constitution – something requiring a state-wide referendum – could gays obtain any protection against discrimination on the basis of sexual orientation.

• Holding. By 6-3 vote, SCt struck down Amendment 2, even though majority used only “mere rationality” review.

• Gays not put in “same position” as others. Colorado defended amendment on grounds that it merely “puts gays and lesbians in the same position as all other persons” and “does no more than deny homosexuals special rights.” But Kennedy found this interpretation “implausible.” The amendment in fact singled gays out for worse treatment than other groups: “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no thers, specific legal protection from the injuries caused by discrimination.”

1. Wide protection of other groups. Kennedy noted that existing state and municipal laws in Colorado protected many groups, not just the racial, ethnic or gender groups to which the SCt has given heightened Equal Protection review. For instance, various ordinances protected persons from discrimination based on “age, military status, marital status, pregnancy, parenthood, custody of a minor child, political affiliation, or physical or mental disability of an individual or of his or her associates.” So Amendment 2 was not simply withdrawing special rights from gays, it was “forbidding them the safeguards that others enjoy or may seek without constraint. These are protections taken for granted by most people either because they already have them or do not need them.”

• Desire to harm is not a legitimate interest. Kennedy then asserted that Amendment 2 “seems inexplicable by anything but animus toward the class that it affects.” He quoted approvingly a prior case (Dept. of Agriculture v. Moreno), “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 governmental interest.” Amendment 2, by identifying persons by a single trait and then denying them equal protection across the board, was “unprecedented in our jurisprudence” and “not within our constitutional tradition.” Central to the guarantee of equal protection is “the principle that government and each of its parts remain open on impartial terms to all who seek its assitance.”

• “Protection of liberties of landlords or employers” rationale is rejected: Colorado argued that Amendment 2 was rationally related to the protection of other citizens’ freedom of association, in particular the freedom of landlords or employers who have personal or religious objections to homosexuality. Kennedy did not reject this as a legtimate state interest. But he found the means-end fit to be fatally loose: “The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them.”

• Conclusion: Kennedy concluded by saying that “Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.”

• Dissent - Scalia. Scalia accused majority of “taking sides in the cultural wars,” and said that its striking down of Amendment was “an act, not of judicial judgment, but of political will.”

• No singling out. Scalia rejected majority’s view that Amendment 2 singled out homosexuals for unfavorable treatment. All the Amendment did was to say to gays that “they may not obtain preferential treatment without amending the state constitution.” If it was a violation of equal protection to force gays to resort to the state-constitutional-amendment level when others don’t have to, then it would also violate equal protection to force any group to “have recourse to a more general and hence more difficult level of political decisionmaking than others.” He posed the example of a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen: “Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature – unlike all other citizens, who need only persuade the municipality. It is ridiculous to consider this a denial of equal protection.”

• Inconsistent with Bowers. Scalia also believed that the majority’s reasoning was inconsistent with Bowers v. Hardwick, in which SCt had held that states may make homosexual conduct a crime. “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 disfavoring homosexual conduct,” and Amendment 2 was at most a very slight disfavoring of that conduct, in his view.

• Not politically unpopular. Scalia noted in passing that it was “nothing short of preposterous to call ‘politically unpopular’ a group which enjoys enormous influence in the American media and politics.” And he accused the majority of siding with the “views and values of the lawyer class,” whose tolerant views of homosexuality are reflected by the fact that law schools require interviewers to pledge their willingness to hire homosexuals.

• Rationally related. Lastly, Scalia believed that the Amendment was in fact reasonably related to a legitimate governmental interest. That interest was the prevention of “piecemeal deterioration of the sexual morality favored by a majority of Coloradans.” And a measure that merely denied homosexuals “preferential treatment” was surely an appropriate means of achieving that end.

Case Summaries

Strauder v. West Virginia (1880): 14^th Amendment

• Majority: STRONG: Laws prohibiting blacks from serving on jury (for a black defendant) violates DUE PROCESS, under the 14^th Amendment

Peters v. Kiff (1972): 14^th Amendment

• Majority: MARSHALL: Law prohibiting blacks from juries (for a white defendant) violates DUE PROCESS, under the 14^th Amendment

Plessy v. Ferguson (1896): 13^th, 14^th Amendments

• Louisiana law that required “SEPARATE BUT EQUAL” railroad cars for blacks and whites. Plessy, 1/8^th black, tried to sit in white railroad car.

• Majority: BROWN: “In the nature of things” (the 13^th and 14^th Amendment) could not have been intended to force the commingling of the two races. Laws requiring separation of races “do not necessarily imply the inferiority of either race to the other” and are within the police power of the states.

• Dissent: HARLAN: 13^th amendment prohibits any burdens or disabilities that constitute badges of slavery or servitude, and the 14^th amendment confirms all other civil rights that pertain to freedom and citizenship. Laws are colorblind.