May 20, 2011
To constitutional law buffs, the case is important because it is one of the rare instances that the Supreme Court found a law unconstitutional after a rational basis review.
Most prominently, though, Romer is hailed as a landmark case for homosexual rights.
The events leading up to the decision start in 1992.
That year, in response to various ordinances passed by municipalities that banned discrimination based on sexual orientation, Colorado voters adopted “Amendment 2,” an amendment to the state constitution.
Amendment 2 prohibits all legislative, executive, or judicial action at any government level designed to protect the status of persons based on their sexual orientation.
Actually, rather than stating simply “sexual orientation,” the Amendment read “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.”
Several cities and homosexual groups filed suit, challenging the Amendment’s validity, and both the trial court and Colorado Supreme Court found Amendment 2 unconstitutional.
The U.S. Supreme Court also found the Amendment unconstitutional, but unlike the Colorado court, which used strict scrutiny, the highest level of judicial review, the Supreme Court used the lowest – rational basis.
Rational basis is normally very deferential to the challenged government act.
It only requires that the governmental action is “rationally related” to a “legitimate” government interest, which the government doesn’t even have to provide (the court may simply conceive one).
Here, the Court found that there was no legitimate government interest, and that the sole purpose of the Amendment was the “desire to harm a politically unpopular group”.
The ruling marked a reversal of the Court’s previous trend toward favoring (or at least allowing) laws that discriminated against homosexuals.
The previous Supreme Court case dealing with homosexual issues was 1986’s Bowers v. Hardwick, which upheld a Georgia sodomy law as constitutional.
Justice Scalia, in his dissent, cited Bowers as controlling precedent, claiming that states are allowed to criminalize behavior on the grounds of morality, so why couldn’t morality justify Amendment 2’s discrimination (or as Scalia put it, denial of “special favor and protection”) against those who openly engage in the same behavior?
However, Bowers was overruled in 2003 by Lawrence v. Texas, another indication of the reversal of the Court’s trend.
In Lawrence, the Court cited to Romer as weakening Bowers’ precedent, and the case was a key factor in the Court’s decision to overturn Bowers.
We’ll very likely get to witness the Court’s new trend (or another trend reversal) in action soon because of legal challenges to Congress’s Defense of Marriage Act, which made recent headlines after President Obama ordered the Justice Department to stop defending it in court.
If the Court continues the trend started by Romer v. Evans, DOMA is likely to be overturned, especially since Justice Kennedy, the Court’s predictable swing vote, wrote the majority opinions for both Romer and Lawrence.
As discussed in an earlier blog post, though, overruling DOMA would be far-reaching, very possibly leading to the nationwide legalization of gay marriage.
Consequently, it is unknown if the Justices, Kennedy in particular, are willing to take that step. But we’ll find out soon enough.