Romer v. Evans is the 1996 U.S. Supreme Court decision that struck down Colorado’s Amendment 2, a state constitutional provision that forbade every level of Colorado government from protecting gay, lesbian, or bisexual people from discrimination. The Court ruled 6–3 on May 20, 1996, that the amendment violated the Equal Protection Clause of the Fourteenth Amendment because it singled out one group and shut them out of the ordinary political process for seeking legal protection.1Supreme Court of the United States. Romer v. Evans, 517 U.S. 620
What Colorado Amendment 2 Did
Colorado voters approved Amendment 2 in November 1992 by roughly 53% to 47%. The measure amended the state constitution to prohibit every branch and level of Colorado government from adopting any law, regulation, or policy that would let a person claim discrimination based on sexual orientation.1Supreme Court of the United States. Romer v. Evans, 517 U.S. 620 The reach was total: the legislature, the governor, the courts, city councils, county commissions, and school boards were all covered.
By the time the amendment passed, Denver, Boulder, and Aspen had each adopted ordinances banning sexual orientation discrimination in areas like housing, employment, and public accommodations. The governor had signed a 1990 executive order forbidding such discrimination in state agencies, and a state insurance law barred it in issuing policies.2Boston College Law Review. Colorado’s Amendment 2 and Homosexuals’ Right to Equal Protection of the Law Amendment 2 erased all of them.
What made the amendment constitutionally unusual was not the repeal but the lockout. It did not simply undo existing protections; it closed off future ones. A Colorado city could not pass a new ordinance covering sexual orientation. The legislature could not add sexual orientation to a civil rights statute. The only remaining route to restoring any such protection was to pass another statewide constitutional amendment, a far steeper undertaking than enacting an ordinance or a bill.2Boston College Law Review. Colorado’s Amendment 2 and Homosexuals’ Right to Equal Protection of the Law
How the Case Reached the Supreme Court
Individual plaintiffs and several Colorado municipalities sued almost immediately. A state trial court granted a preliminary injunction in January 1993 and later made it permanent. The Colorado Supreme Court upheld the injunction on the theory that Amendment 2 infringed the fundamental right of gay and lesbian citizens to participate in the political process on equal terms, requiring strict scrutiny.3Justia U.S. Supreme Court Center. Romer v. Evans On remand the trial court applied that standard and found the amendment unconstitutional. Colorado appealed, and the U.S. Supreme Court heard oral argument on October 10, 1995.
Why the Court Struck It Down
The U.S. Supreme Court did not adopt the Colorado Supreme Court’s strict scrutiny approach. The majority applied rational basis review, the most deferential standard courts use in equal protection cases. A law survives rational basis review if it bears a rational connection to any legitimate government purpose, and most laws clear that bar without difficulty. Amendment 2 did not.
Colorado’s Justifications Did Not Match the Law
Colorado defended the amendment on two main grounds. It argued the measure protected the freedom of association of citizens, especially landlords and employers with religious objections to homosexuality, and that it conserved state resources that would otherwise go to enforcing anti-discrimination laws for an additional group. The majority found these reasons wildly out of proportion to what the amendment actually did. Justice Kennedy, writing for the majority, said the amendment was “at once too narrow and too broad,” identifying people by a single trait and then withdrawing protection across the board.1Supreme Court of the United States. Romer v. Evans, 517 U.S. 620
Animus Is Not a Legitimate Interest
The mismatch between Colorado’s stated reasons and the amendment’s sweep led the Court to conclude that the real motivation was animus toward gay and lesbian people. Kennedy quoted the 1973 decision Department of Agriculture v. Moreno for the principle that “a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”3Justia U.S. Supreme Court Center. Romer v. Evans The breadth of the disability imposed on an identified class raised, in Kennedy’s words, “the inevitable inference that it is born of animosity toward the class that it affects.”1Supreme Court of the United States. Romer v. Evans, 517 U.S. 620 Because hostility toward a group is not a legitimate government purpose, a law motivated by animus fails even rational basis review.
The Vote and the Line That Stuck
Kennedy was joined by Justices Stevens, O’Connor, Souter, Ginsburg, and Breyer. The opinion closed with a sentence often quoted since: “A State cannot so deem a class of persons a stranger to its laws.”1Supreme Court of the United States. Romer v. Evans, 517 U.S. 620 The ruling invalidated Amendment 2 and restored the ability of Colorado’s cities and state government to enact anti-discrimination protections covering sexual orientation.
Scalia’s Dissent
Justice Scalia dissented, joined by Chief Justice Rehnquist and Justice Thomas. His opening line set the tone: “The Court has mistaken a Kulturkampf for a fit of spite.” Where the majority saw animus, Scalia saw a “modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority.”4Legal Information Institute. Romer, Governor of Colorado, et al. v. Evans et al., 517 U.S. 620
His central argument leaned on Bowers v. Hardwick, the 1986 decision upholding state laws criminalizing homosexual conduct. If a state could criminalize the conduct entirely, Scalia reasoned, it could take the lesser step of declining to extend special protections based on that conduct.3Justia U.S. Supreme Court Center. Romer v. Evans He framed Amendment 2 as a refusal to grant favored treatment rather than a stripping of existing rights, and accused the majority of taking sides in a cultural conflict instead of interpreting the Constitution.
What Romer Changed
Romer’s reach grew in the decades that followed. In Lawrence v. Texas (2003), the Court struck down state sodomy laws on due process grounds. Writing again for the majority, Kennedy cited Romer and observed that the Colorado amendment had been “born of animosity toward the class of persons affected.”5Justia U.S. Supreme Court Center. Lawrence v. Texas Lawrence then overruled Bowers v. Hardwick outright, removing the precedent Scalia had leaned on in his Romer dissent.
In Obergefell v. Hodges (2015), the Court recognized a constitutional right to same-sex marriage, again tracing its reasoning through Romer and noting the earlier case had invalidated a Colorado amendment that sought to foreclose any branch of government from protecting people based on sexual orientation. The progression from Romer to Lawrence to Obergefell is one of the clearer doctrinal lines in modern constitutional law, with each decision building directly on the one before.
Romer also reshaped how courts apply rational basis review. The conventional view before 1996 was that rational basis review was close to a rubber stamp. Romer showed that when a law’s scope so far outstrips its stated justification that hostility toward a group becomes the only plausible explanation, even this deferential standard has real limits. That principle has since been invoked in equal protection challenges well beyond the context of sexual orientation.