Homosexuality and the Federal Constitution: A Legal Analysis of the U.S. Supreme Court Ruling in Romer v. Evans (CRS Report for Congress)
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| Release Date |
June 21, 1996 |
| Report Number |
96-575 |
| Report Type |
Report |
| Authors |
Charles V. Dale, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
This document also available in PDF Image .
The U.S. Supreme Court this term in Romer v. Evans , decided 6 to 3 that the State
of Colorado
violated the right of lesbians and homosexuals to Equal Protection of the Laws when it adopted, by
voter referendum, Amendment 2 to the State Constitution. That amendment rescinded various state
and local laws prohibiting discrimination on the basis of "homosexual, lesbian or bisexual
orientation" and barred the statutory enactment of any such civil rights protection in the future.
Justice Kennedy's majority opinion affirmed the judgment but not the rationale of the Colorado
Supreme Court which had applied "strict scrutiny" to invalidate Amendment 2 based on a
"fundamental rights" analysis. Instead, the Kennedy-led majority applied a "rationality" standard
to hold that the "broad and undifferentiated disability of a single named group" was irrational and
could not be justified by any legitimate state interest.
Bowers v. Hardwick was not mentioned by the Romer majority. In
Bowers , a decade earlier
the Court refused, by a 5 to 4 vote, to find that any constitutionally recognized "liberty" interest was
contravened by a Georgia State law penalizing homosexual sodomy. Bowers was a
"conduct" case
seeking, in effect, due process protection from state prosecution for homosexual acts rather than
safeguards against discrimination by the state based on sexual "orientation." The comprehensive
nature of the legal disability visited upon the "isolated group" disadvantaged by Amendment 2, and
the "unique" circumstances of its enactment, may also serve to distinguish and diminish the force
of Romer in other legal and statutory contexts.
The possible fragility of the Bowers precedent, and Romer's silence
as to its status, could lead
to future litigation on a variety of fronts.
