Romer v. Evans



Under the Equal Protection Clause of the Fourteenth Amendment, a state cannot amend its constitution to deny homosexuals the same basic legal protections that heterosexuals receive.


Amendment 2 to the Colorado state constitution, which was passed into law by a voter initiative in 1992, provided that no city, town, or county in the state could recognize homosexuals as a protected class through any statute, regulation, ordinance, or policy entitling them to quota preferences, minority status, or claims of discrimination. The Amendment, which succeeded by a relatively narrow margin, appears to have been based on a fear of affirmative action based on sexual orientation rather than any impulse toward discrimination. Ironically, Governor Romer opposed its passage, even though he was named as the defendant in the eventual case.

A state court enjoined the Amendment from enforcement pending determination of the appropriate standard of review. The Colorado Supreme Court concluded that this standard should be strict scrutiny, and the lower state court struck down the Amendment upon remand. The Colorado Supreme Court agreed, although it did not rule on the issue of whether homosexuals were a protected class, which they had been found to be by the trial court. Instead, its ruling was based on the due process notion that homosexuals had a fundamental right to engage in the political process, which the Amendment would have denied them.



  • Anthony M. Kennedy (Author)
  • John Paul Stevens
  • Sandra Day O’Connor
  • David H. Souter
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

Rather than relying on fundamental rights and due process, as the state court had, the majority argued that Amendment 2 failed the rational basis test under the Equal Protection Clause. This was the lowest possible standard of review and required showing that the law lacked a rational relation to a legitimate government purpose. Kennedy felt that there was no possible justification for the law other than a specific animus against the group that it targeted, since its virtually limitless scope dwarfed the justifications that the state provided. The imbalance between the narrowly identified class and the breadth of the protections denied made him especially suspicious of a desire to harm homosexuals and an insidious attempt to insulate an impermissible law from judicial review.


  • Antonin Scalia (Author)
  • William Hubbs Rehnquist
  • Clarence Thomas

Scalia felt that there was no evidence to support the majority’s inference of animus and that the law merely prevented homosexuals from receiving additional protections rather than removing those in place against discrimination. He also pointed out that the Court had criminalized homosexual conduct in Bowers v. Hardwick, a decision later overruled by Lawrence v. Texas but still valid at the time of this case. Scalia observed that it was logical to deny people who engaged in criminal conduct any special protections. Another precedent that he noted, Davis v. Beason, had found that it was constitutional for laws to target polygamists by denying them protections, and Scalia felt that homosexuals posed a similar social harm to polygamists. More broadly, he criticized the majority for moving beyond the proper boundaries of the judicial role and engaging in unwarranted activism by striking down a law without a specific constitutional basis for doing so.


This case predated the signature Supreme Court case on homosexual conduct, Lawrence v. Texas, which made this conclusion surprising. A rational basis standard of review would have seemed to suffice to find this amendment valid, so the Court implicitly seems to have used a higher standard.