Happy Anniversary, Romer v. Evans

Romer was the first positive decision by that Court on the issues of LGBT rights

May 20, 2016 marks the 20^th anniversary of the Supreme Court decision in Romer v. Evans. This was the first positive decision by that Court on the issues of Lesbian, Gay, Bisexual and Transgender (LGBT) rights. It overturned a discriminatory Colorado initiative (Amendment 2) that sought to amend the state constitution to prohibit protections for LGBT people. The Amendment was authored by a religious right organization called Colorado for Family Values (CFV). They had previously attempted to overturn a Denver LGBT protective ordinance but lost that battle. In essence, Amendment 2 stated that every entity in the state was barred from enacting, adopting, or enforcing any laws that protected LGBTs and that LGBTs would be barred from bringing any claims of discrimination under Colorado law. The language of the amendment was fairly simple, but its potential impact was complex and far-reaching.

Romer in the Courts

The case began in 1992 and became final in 1996. It wound its way from the state trial court, which halted the implementation of Amendment 2 by granting an injunction; to the Colorado Supreme Court, which affirmed the lower court decision overturning the initiative; to its final destination at the United States Supreme Court. During those years Colorado became known as the “hate state” and experienced a boycott that was not unlike the financial devastation being experienced today in North Carolina as a result of its discriminatory transgender bathroom law.

In a 6-3 decision, the U.S. Supreme Court upheld the Colorado Court decisions and struck down Amendment 2 using an equal protection argument. The Court never addressed whether sexual minorities constitute a suspect or intermediate classification for equal protection analyses (and has not yet done so) because it found the law unconstitutional using the lowest level of scrutiny called a rational basis analysis. The Supreme Court interpreted the U.S. Constitution to forbid laws that reflect “animus” against gay and lesbian Americans, and the 2014 decision in United States v. Windsor reaffirmed this anti animus principle.

man holding crystal ball

Laying Future Groundwork

The holding in Romer became one of the most important LGBT Supreme Court cases and would lay the legal foundation for overturning the nation’s sodomy laws in Lawrence v. Texas. It was also cited in the federal military cases which ultimately resulted in the eradication of the “Don’t Ask, Don’t Tell” military policy and permitted LGB to serve openly in the military. Romer was also argued in the marriage cases which paved the way for the legalization of same sex marriages. [i] Romer is also being used to establish the equal protection arguments against the newly developing “religious freedom laws[ii],” which, if passed, would allow individuals or businesses to turn away LGBT clients as long as they cite religious objections to homosexuality. In my opinion the Romer case is up there with other great civil rights pronouncements like Brown v. Board of Education, the 19^th Amendment to the U.S. Constitution giving women the right to vote, Roe v. Wade that upheld a women’s right to reproductive privacy and Loving v. Virginia that overturned discriminatory racial marriage laws. While it is disheartening to have to engage in these rights’ battles, it is also exhilarating to forge new paths that provide equal justice for all.

Footnotes

[i] Obergefell v. Hodges, 576 U.S. ___ (2015), is a landmark United States Supreme Court case in which the Court held in a 5–4 decision that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

[ii] See, e.g., S.B. 1062, 51st Leg., 2d Reg. Sess. (Ariz. 2014) (“State Action shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”); H.R. 427, 62d Leg., 2d Reg. Sess. (Idaho 2014) (“Free exercise of religion is a fundamental right that applies in this state, even if laws, rules or other governmental actions are facially neutral.”); H.R. 2453, 85th Leg., Reg. Sess. (Kan. 2014) (“[N]o individual or religious entity shall be required . . . to . . . provide any services, accommodations, advantages, facilities, goods, or privileges . . . related to the celebration of[] any marriage, domestic partnership, civil union or similar arrangement; . . . solemnize any marriage, domestic partnership, civil union or similar arrangement; or treat any . . . as valid.”). A corollary religious argument was demonstrated in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760–62 (2014), which addressed the Religious Freedom Restoration Act as opposed to a First Amendment religious freedom argument.