Oct 7, 2005
Volume 33
Issue 40

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Past Out by Liz Highleyman
What was Romer v. Evans?
The U.S. Supreme Court has a mixed record when it comes to LGBT civil rights. The court upheld state sodomy laws in the 1986 Bowers v. Hardwick case, but reversed itself with the 2003 Lawrence v. Texas decision. While it permitted a private organization to exclude Gay members in the Boy Scouts of America v. Dale case in 2000, the court ruled that states may not ban antidiscrimination laws that protect Gay and Bisexual people in its 1996 Romer v. Evans ruling, the outcome of a long legal battle over Colorado's Amendment 2 ballot initiative.

A conservative state with liberal enclaves, Colorado's first law against antiGay discrimination was instituted by the resort town of Aspen in 1977, during a decade that saw numerous Gay rights victories across the country. Following the rise of the religious right in the 1980s, however, a group called Citizens for Family Values introduced an amendment that would prevent state agencies, municipalities, or school districts from enacting laws or policies whereby "homosexual, Lesbian, or Bisexual orientation, conduct, practices, or relationships" would constitute the basis for "any minority status, quota preferences, protected status, or claim of discrimination."

Although polls predicted the initiative was headed for defeat, voters passed Amendment 2 in November 1992 by a margin of 53 to 47 percent. The outcome set off a flurry of protest and a campaign to boycott the state. Organizations ranging from the American Mathematical Society to the U.S. Conference of Mayors cancelled conferences in Colorado. Aspen vowed to continue enforcing its civil rights ordinance, and Telluride passed a similar measure in defiance of the new state law.

A coalition spearheaded by Lambda Legal Defense and Education Fund and the American Civil Liberties Union filed a lawsuit against Amendment 2, arguing that it violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. In January 1993, Judge Jeffrey Bayless ruled in their favor, issuing an injunction preventing the initiative from taking effect.

"For the judge to suggest that a...skewed sense of morality is not a basis for denying rights to Gays and Lesbians - I've been waiting to hear that all of my life," exclaimed Richard Evans, a former staff member of Denver's Agency for Human Rights and Community Relations who signed on as lead plaintiff in the suit. Also joining as plaintiffs were the Boulder Valley School District; the cities of Denver, Boulder, and Aspen; tennis star Martina Navratilova; and six other individuals.

Colorado Governor Roy Romer - who personally opposed the amendment - and Attorney General Gale Norton filed an appeal, arguing that Amendment 2 merely prohibited granting Gays "special rights." In July 1993, the Colorado Supreme Court upheld Judge Bayless' ruling, stating that the amendment, "bars Gay men, Lesbians, and Bisexuals from having an effective voice in governmental affairs."

After a second failed appeal to the Colorado high court, the state asked the U.S. Supreme Court to hear the case. Since the Supreme Court reverses most appeals it hears, its decision to accept the case worried Gay rights advocates as they prepared for oral arguments scheduled for October 1995. As part of his law firm's pro bono legal work, John G. Roberts Jr. - who was named Chief Justice of the Supreme Court in September 2005 - assisted the plaintiffs' attorneys by playing the role of a conservative justice in a practice mock trial.

On May 20, 1996, the Supreme Court ruled by a 6-3 margin that Amendment 2 was unconstitutional, declaring that "a state cannot so deem a class of person a stranger to its laws." Writing for the court's majority, Justice Anthony Kennedy rejected Colorado's contention that the state had a legitimate government interest in excluding homosexual and Bisexual people from legal protection, suggesting the effort was motivated by "a bare desire to harm a politically unpopular group."

Justice Antonin Scalia (joined by then-Chief Justice William Rehnquist and Justice Clarence Thomas) strongly dissented, claiming that Amendment 2 was "a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority." Evoking the culture war, he expressed outrage that the court's ruling "places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias."

The groundbreaking decision was the first time in American history that the Supreme Court had ruled in favor of LGBT citizens. According to Lambda Legal attorney Ruth Harlow, the ruling - coming 10 years after Bowers - set a new precedent that helped LGBT plaintiffs prevail in countless ensuing civil rights and family law cases. "Now, the presumption in most judges' minds is that constitutional claims on behalf of Lesbians and Gay men have legitimacy, and that the government bears the burden of justifying its antiGay actions," she wrote in 1997.

While Romer stymied a wave of attempts to overturn local antidiscrimination laws, conservatives soon shifted their focus to same-sex marriage, culminating in the passage of 11 ballot initiatives against Gay marriage in November 2004. Given the changes in the Supreme Court's composition in 2005, the queer community anxiously awaits the high court's next move in the arena of LGBT civil rights.

Liz Highleyman is a freelance writer and editor who has written widely on health, sexuality, and politics. She can be reached care of this publication or at

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October 15- 23, 2005

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