Home » About » Newsletters » August 1996
Gay and Lesbian Rights After Romer v. Evans
By William E. Adams Jr
August 1996
The decision by the United States Supreme Court in Romer v. Evans has thrilled advocates for equal treatment of gays and lesbians, but it has also created debate among attorneys and academics about what its impact, both short and long term, will be. One of the more interesting issues concerns the continued validity of Bowers v. Hardwick, the infamous case decided only ten years ago in which the Court found Georgia's sodomy statute to be constitutional. What is clear, however, is the impact upon the type of initiative that Colorado voters approved.
In 1992, the Colorado voters approved an amendment to the Colorado Constitution, Amendment 2, which prohibited all state and local legislature, executive and judicial bodies from protecting the status of persons based upon their "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships." Thus, among other things, the illegal amendment would have voided ordinances that banned discrimination based upon sexual orientation in Aspen, Boulder, and the City and County of Denver. It also would have gone much further, however, by preventing the adoption of any "statute, regulation, ordinance, or policy" in the future. A group of individuals and municipalities aggrieved by the Amendment obtained an injunction in state court, which they appealed to the Colorado Supreme Court. The Colorado Court found that the measure violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Court found that the measure was subject to strict scrutiny because it infringed upon the fundamental right of lesbians and gays to participate in the political process, a right it found in a series of the U.S. Supreme Court's voting rights cases. They remanded the case to the trial court, which found that the Amendment could not withstand such scrutiny. The U.S. Supreme Court rejected this rationale, but overturned the Amendment on a different Equal Protection analysis.
Writing for the Court, Justice Kennedy begins by recalling that the decision comes 100 years after the case of Plessy v. Ferguson. Justice Kennedy rejected Colorado's argument that the measure merely denied homosexuals special rights as "implausible." Observing that only lesbians and gays were singled out from obtaining protection from discrimination, he noted the broad sweep of the amendment, which would have prohibited protection in the use of public accommodations, housing, sale of real estate, insurance, health and welfare services, education, and employment. In relatively strong language, the Court noted that the legislation was exceptional in the disability it imposed upon the impacted class and added that its breath was such as to lack a rational relationship to any legitimate state interest but instead seemed "inexplicable by anything but animus toward the class that it affects." The Court specifically rejected the State's arguments that it was protecting freedom of association of landlords and employers with personal or religious objections to homosexuality.
Justice Scalia, joined by the Chief Justice and Justice Thomas, wrote one of his most scathing dissent in a term in which even conservatives have criticized him for his personal attacks on other members of the Court. Using some of the radical right's favorite code words and phrases, Scalia's opinion engaged in a diatribe about special rights and preferential treatment, referring to gays and lesbians as being a "powerful political minority." He also proceeded to note that the majority seemed to undermine the Bowers decision without making any reference to it, an argument with which he may get agreement from lesbian and gay rights advocates in the lower courts. Scalia argued that if the state can criminalize homosexual conduct, it should not be unconstitutional to discriminate against the class defined by such conduct. Comparing the moral disapproval of homosexual conduct to murder, polygamy, and cruelty to animals, he refers to the majority's discussion of "gaybashing" as comical. Next, Scalia engaged in the kind of conclusory analysis he is so fond of criticizing other justices for doing. Referring to an affidavit in the record, he proceeded to note that gays and lesbians have high disposable income and inordinate political power for their numbers. Of course, the validity of those studies are subject to intense debate. Referring to aspects of the majority decision as being a "facially absurd proposition" or "preposterous", Scalia closes by accusing the majority of reflecting the elite views of the "lawyer class" by criticizing the Association of American Law Schools for its bylaw prohibiting job discrimination on the basis of sexual orientation.
So what does this mean? As noted, analysts disagree. It seems clear that ballot initiatives that attempt to prevent lesbians and gays from obtaining antidiscrimination legislation, except through extraordinary procedures, is void although some conservatives have claimed that by narrowing the language one could still propose a similar measurea claim that seems dubious at best. The decision would not appear to prevent referenda that repealed existing ordinances, although some advocates argue that the underlying thrust of the opinion could lead to a successful challenge to such repeal efforts. Although not impossible, it should not be difficult for the Court to distinguish repeal measures from the radical impact of measures such as Amendment 2.
The truly contentious debate, however, is what impact the decision will have on other gay and lesbian litigation such as the current battles over gays in the military, gay marriage, and adoption. By finding that this measure fails a rational basis test, the Court has finally given advocates a precedent to support their Equal Protection arguments in these other areas. Because the Court has so rarely overturned a measure on a rational basis standard, it gives support to the efforts of advocates to overturn antigay measures. During the past ten years, such advocates have constantly been told that Bowers created a barrier to gays in Constitutional challenges, even when the arguments raised were unrelated to substantive due process. Romer finally clarifies that lesbians and gays do in fact have constitutional rights. If it does not directly overrule Bowers, it at least limits the seemingly unending breath that some courts have given it.
At present, the ACLU of Florida is counsel for a lesbian seeking to overturn Florida's statute which completely bans homosexuals from adoption. The case was filed before Romer and the arguments are based upon the Florida Constitution's Equal Protection Clause. Thus, Romer is not directly controlling, but its rational basis rejection of the ballot initiative should at least be seen as helpful. Its impact upon the lesbian custody cases currently on appeal in the First District of Appeal in Florida is probably even weaker since they do not involve Equal Protection claims. However, as advocates saw after Bowers, the symbolic impact of a Supreme Court decision upon the way other courts view lesbians and gays cannot be underestimated. As some analysts have noted, it may take ten to fifteen years to litigate its full impact, but it is clearly a positive step for everyone who believes in truly equal treatment by the law of all persons.
William E. Adams Jr. is a professor of law at Nova University Southeastern Law Center.
