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- American Civil Liberties Union - Association of American Law Schools - Boston Queer Asian Pacific Alliance - Community United Against Violence - Fenway Community Health Center - Gay & Lesbian Advocates & Defenders - Gender Public Advocacy Coalition - International Association of Lesbian & Gay Judges - International Gay & Lesbian Human Rights Comm. - International Lesbian & Gay Association - Lambda Legal Defense & Education Fund - Massachusetts Chapter of Gender Education &
Advocacy - Massachusetts Lesbian & Gay Bar Association - National Center for Lesbian Rights - National Gay & Lesbian Task Force - National Latina/o LGBT Organization |
SUPREME COURT OF THE UNITED STATES 517 Decided: JUSTICE KENNEDY delivered the opinion of the
Court. One century ago, the first Justice Harlan
admonished this Court that the Constitution "neither knows nor tolerates
classes among citizens." Plessy v. I The enactment challenged in this case is an
amendment to the Constitution of the State of Yet Amendment 2, in explicit terms, does more
than repeal or rescind these provisions. It
prohibits all legislative, executive or judicial action at any level of state
or local government designed to protect the named class, a class we shall
refer to as homosexual persons or gays and lesbians. The amendment reads: "No Protected Status Based on Homosexual,
Lesbian or Bisexual Orientation. Neither the State of Colorado, through any
of its branches or departments, nor any of its agencies, political
subdivisions, municipalities or school districts, shall enact, adopt or
enforce any statute, regulation, ordinance or policy whereby homosexual,
lesbian or bisexual orientation, conduct, practices or relationships shall
constitute or otherwise be the basis of or entitle any person or class of
persons to have or claim any minority status, quota preferences, protected
status or claim of discrimination. This Section of the Constitution shall be
in all respects self-executing." Ibid. Soon after Amendment 2 was adopted, this
litigation to declare its invalidity and enjoin its enforcement was commenced
in the District Court for the City and The trial court granted a preliminary
injunction to stay enforcement of Amendment 2, and an appeal was taken to the
Supreme Court of Colorado. Sustaining the interim injunction and remanding
the case for further proceedings, the State Supreme Court held that Amendment
2 was subject to strict scrutiny under the Fourteenth Amendment because it
infringed the fundamental right of gays and lesbians to participate in the
political process. Evans v. Romer, 854 P.2d 1270 ( II The State's principal argument in defense of
Amendment 2 is that it puts gays and lesbians in the same position as all
other persons. So, the State says, the
measure does no more than deny homosexuals special rights. This reading of
the amendment's language is implausible. We rely not upon our own interpretation
of the amendment but upon the authoritative construction of "The 'ultimate effect' of Amendment 2 is
to prohibit any governmental entity from adopting similar, or more protective
statutes, regulations, ordinances, or policies in the future unless the state
constitution is first amended to permit such measures." 854 P.2d at 1284-1285, and n. 26. n26 "Metropolitan
State College of Denver prohibits college sponsored social clubs from
discriminating in membership on the basis of sexual orientation and Colorado
State University has an antidiscrimination policy which encompasses sexual
orientation. Sweeping and comprehensive is the change in
legal status effected by this law. So much is
evident from the ordinances the Colorado Supreme Court declared would be void
by operation of Amendment 2. Homosexuals, by state decree, are put in a
solitary class with respect to transactions and relations in both the private
and governmental spheres. The amendment withdraws from homosexuals, but no
others, specific legal protection from the injuries caused by discrimination,
and it forbids reinstatement of these laws and policies. The change Amendment 2 works in the legal
status of gays and lesbians in the private sphere is far reaching, both on
its own terms and when considered in light of the structure and operation of
modern antidiscrimination laws. That structure is well illustrated by
contemporary statutes and ordinances prohibiting discrimination by providers
of public accommodations. "At common law, innkeepers, smiths, and others
who 'made profession of a public employment,' were prohibited from refusing,
without good reason, to serve a customer." Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 571, 132 L. Ed. 2d
487, 115 S. Ct. 2338 (1995). The duty was a general one and did not specify
protection for particular groups. The common-law rules, however, proved insufficient
in many instances, and it was settled early that the Fourteenth Amendment did
not give Congress a general power to prohibit discrimination in public
accommodations, Civil Rights Cases, 109 U.S. 3, 25, 27 L. Ed. 835, 3 S. Ct.
18 (1883). In consequence,
most States have chosen to counter discrimination by enacting
detailed statutory schemes. See, e. g., S. D. Codified Laws § § 20-13-10,
20-13-22, 20-13-23 (1995); Iowa Code § § 216.6-216.8 (1994); Okla. Stat., Tit. 25, § §
1302, 1402 (1987); 43 Pa. Cons. Stat. § § 953, 955 (Supp. 1995); N. J. Stat. Ann. § § 10:5-3, 10:5-4
(West Supp. 1995); N. H. Rev. Stat. Ann. § § 354-A:7, 354-A:10, 354-A:17 (1995); Minn.
Stat. § 363.03 (1991 and Supp. 1995). These statutes and ordinances also depart from
the common law by enumerating the groups or persons within their ambit of
protection. Enumeration is the essential device used to make the duty not to
discriminate concrete and to provide guidance for those who must comply. In
following this approach, Amendment 2 bars homosexuals from securing
protection against the injuries that these public-accommodations laws
address. That in itself is a severe consequence, but there is more. Amendment
2, in addition, nullifies specific legal protections for this targeted class
in all transactions in housing, sale of real estate, insurance, health and
welfare services, private education, and employment. See, e. g., Aspen
Municipal Code § § 13-98(b), (c)
(1977); Boulder Rev. Code § § Not confined to the private sphere, Amendment 2
also operates to repeal and forbid all laws or policies providing specific
protection for gays or lesbians from discrimination by every level of Amendment 2's reach may not be limited to
specific laws passed for the benefit of gays and lesbians. It is a fair, if
not necessary, inference from the broad language of the amendment that it
deprives gays and lesbians even of the protection of general laws and
policies that prohibit arbitrary discrimination in governmental and private
settings. See, e. g., Colo. Rev. Stat. §
24-4-106(7) (1988) (agency action subject to judicial review under arbitrary and
capricious standard); § 18-8-405
(making it a criminal offense for a public servant knowingly, arbitrarily, or
capriciously to refrain from performing a duty imposed on him by law); § 10-3-1104(1)(f) (prohibiting "unfair
discrimination" in insurance); 4 Colo. Code of Regulations 801-1, Policy
11-1 (1983) (prohibiting discrimination in state employment on grounds of
specified traits or "other non-merit factor"). At some point in the
systematic administration of these laws, an official must determine whether
homosexuality is an arbitrary and, thus, forbidden basis for decision. Yet a
decision to that effect would itself amount to a policy prohibiting
discrimination on the basis of homosexuality, and so would appear to be no
more valid under Amendment 2 than the specific prohibitions against
discrimination the state court held invalid. If this consequence follows from Amendment 2,
as its broad language suggests, it would compound the constitutional
difficulties the law creates. The state court did not decide whether the
amendment has this effect, however, and neither need
we. In the course of rejecting the argument that Amendment 2 is intended
to conserve resources to fight
discrimination against suspect classes, the Colorado Supreme Court made the
limited observation that the amendment is not intended to affect many
antidiscrimination laws protecting nonsuspect
classes, Romer II, 882 P.2d, at 1346, n. 9. In our
view that does not resolve the issue. In any event, even if, as we doubt,
homosexuals could find some safe harbor in laws of general application, we
cannot accept the view that Amendment 2's prohibition on specific legal
protections does no more than deprive homosexuals of special rights. To the
contrary, the amendment imposes a special disability upon those persons
alone. Homosexuals are forbidden the safeguards that others enjoy or may seek
without constraint. They can obtain specific protection against
discrimination only by enlisting the citizenry of III The Fourteenth Amendment's promise that no
person shall be denied the equal protection of the laws must coexist with the
practical necessity that most legislation classifies for one purpose or
another, with resulting disadvantage to various groups or persons. Personnel Administrator of Amendment 2 fails, indeed defies, even this
conventional inquiry. First, the amendment has the peculiar property of
imposing a broad and undifferentiated disability on a single named group, an
exceptional and, as we shall explain, invalid form of legislation. Second, its
sheer breadth is so discontinuous with the reasons offered for it that the
amendment seems inexplicable by anything but animus toward the class it
affects; it lacks a rational relationship to legitimate state interests. Taking
the first point, even in the ordinary equal protection case calling for the
most deferential of standards, we insist on knowing the relation between the
classification adopted and the object to be attained. The search for the link
between classification and objective gives substance to the Equal Protection
Clause; it provides guidance and discipline for the legislature, which is
entitled to know what sorts of laws it can pass; and it marks the limits of
our own authority. In the ordinary case, a law will be sustained if it can be
said to advance a legitimate government interest, even if the law seems
unwise or works to the disadvantage of a particular group, or if the
rationale for it seems tenuous. See New Orleans v. Dukes, 427 U.S. 297, 49 L.
Ed. 2d 511, 96 S. Ct. 2513 (1976) (tourism benefits justified classification
favoring pushcart vendors of certain longevity); Williamson v. Lee Optical of
Okla., Inc., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955) (assumed health concerns
justified law favoring optometrists over opticians); Railway Express Agency,
Inc. v. New York, 336 U.S. 106, 93 L. Ed. 533, 69 S. Ct. 463 (1949)
(potential traffic hazards justified exemption of vehicles advertising the
owner's products from general advertising ban); Kotch
v. Board of River Port Pilot Comm'rs for Port of
New Orleans, 330 U.S. 552, 91 L. Ed. 1093, 67 S. Ct. 910 (1947) (licensing
scheme that disfavored persons unrelated to current river boat pilots
justified by possible efficiency and safety benefits of a closely knit pilotage system). The laws challenged in the cases just
cited were narrow enough in scope and grounded in a sufficient factual
context for us to ascertain some relation between the classification and the
purpose it served. By requiring that the classification bear a rational
relationship to an independent and legitimate legislative end, we ensure that
classifications are not drawn for the purpose of disadvantaging the group
burdened by the law. See Railroad Retirement Bd. v. Fritz, 449 Amendment 2 confounds this normal process of
judicial review. It is at once too narrow and too broad. It identifies
persons by a single trait and then denies them protection across the board.
The resulting disqualification of a class of persons from the right to seek
specific protection from the law is unprecedented in our jurisprudence. The
absence of precedent for Amendment 2 is itself instructive;
"discriminations of an unusual character especially suggest careful
consideration to determine whether they are obnoxious to the constitutional
provision." Louisville Gas & Elec. Co. v. Coleman, 277 It is not within our constitutional tradition
to enact laws of this sort. Central both to the idea of the rule of law and
to our own Constitution's guarantee of equal protection is the principle that
government and each of its parts remain open on impartial terms to all who
seek its assistance. "'Equal protection of the laws is not achieved
through indiscriminate imposition of inequalities.'" Sweatt
v. Painter, 339 Davis v. Beason, 133
U.S. 333, 33 L. Ed. 637, 10 S. Ct. 299 (1890), not cited by the parties but
relied upon by the dissent, is not evidence that Amendment 2 is within our
constitutional tradition, and any reliance upon it as authority for
sustaining the amendment is misplaced. In Davis, the Court approved an Idaho
territorial statute denying Mormons, polygamists, and advocates of polygamy the
right to vote and to hold office because, as the Court construed the statute,
it "simply excludes from the privilege of voting, or of holding any
office of honor, trust or profit, those who have been convicted of certain
offences, and those who advocate a practical resistance to the laws of the
Territory and justify and approve the commission of crimes forbidden by
it." A second and related point is that laws of the
kind now before us raise the inevitable inference that the disadvantage
imposed is born of animosity toward the class of persons affected. "If
the constitutional conception of 'equal protection of the laws' means
anything, it must at the very least mean that a bare . . . desire
to harm a politically unpopular group cannot constitute a legitimate
governmental interest." Department of Agriculture v. The primary rationale the State offers for
Amendment 2 is respect for other citizens' freedom of association, and in
particular the liberties of landlords or employers who have personal or
religious objections to homosexuality. We must conclude that Amendment 2 classifies
homosexuals not to further a proper legislative end but to make them unequal
to everyone else. This It is so ordered. JUSTICE SCALIA, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, dissenting. The Court has mistaken a Kulturkampf
for a fit of spite. The constitutional amendment before us here is not the
manifestation of a "'bare . . . desire to harm'" homosexuals, ante,
at 634, but is rather a modest attempt by seemingly tolerant Coloradans to
preserve traditional sexual mores against the efforts of a politically
powerful minority to revise those mores through use of the laws. That
objective, and the means chosen to achieve it, are not only unimpeachable
under any constitutional doctrine hitherto pronounced (hence the opinion's
heavy reliance upon principles of righteousness rather than judicial
holdings); they have been specifically approved by the Congress of the In holding that homosexuality cannot be singled
out for disfavorable treatment, the Court
contradicts a decision, unchallenged here, pronounced only 10 years ago, see
Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986),
and places the prestige of this institution behind the proposition that
opposition to homosexuality is as reprehensible as racial or religious bias.
Whether it is or not is precisely the cultural debate that gave rise to the I Let me first discuss Part II of the Court's
opinion, its longest section, which is devoted to rejecting the State's
arguments that Amendment 2 "puts gays and lesbians in the same position
as all other persons," and "does no more than deny homosexuals
special rights," ante, at 626. The Court concludes that this reading of
Amendment 2's language is "implausible" under the "authoritative construction"
given Amendment 2 by the Supreme Court of Colorado. Ibid. In reaching this conclusion, the Court
considers it unnecessary to decide the validity of the State's argument that
Amendment 2 does not deprive homosexuals of the "protection [afforded
by] general laws and policies that prohibit arbitrary discrimination in
governmental and private settings." Ante, at 630. I agree that we need
not resolve that dispute, because the Supreme Court of Colorado has resolved
it for us. In the case below, 882 P.2d 1335 (1994), the "It is significant to note that Colorado
law currently proscribes discrimination against persons who are not suspect
classes, including discrimination based on age, § 24-34-402(1)(a), 10A C. R. S. (1994 Supp.);
marital or family status, §
24-34-502(1)(a), 10A C. R. S. (1994 Supp.); veterans' status, § 28-3-506, 11B C. R. S. (1989); and for any
legal, off-duty conduct such as smoking tobacco, § 24-34-402.5, 10A C. R. S. (1994 Supp.). Of
course Amendment 2 is not intended to have any effect on this legislation,
but seeks only to prevent the adoption of anti-discrimination laws intended
to protect gays, lesbians, and bisexuals." The Court utterly fails to distinguish this
portion of the Despite all of its hand wringing about the
potential effect of Amendment 2 on general antidiscrimination laws, the
Court's opinion ultimately does not dispute all this, but assumes it to be
true. See ante, at 630. The only denial of equal treatment it contends
homosexuals have suffered is this: They may not obtain preferential treatment
without amending the state constitution. That is to say, the principle
underlying the Court's opinion is that one who is accorded equal treatment under the laws, but
cannot as readily as others obtain preferential treatment under the laws, has
been denied equal protection of the laws. If merely stating this alleged
"equal protection" violation does not suffice to refute it, our
constitutional jurisprudence has achieved terminal silliness. The central thesis of the Court's reasoning is
that any group is denied equal protection when, to obtain advantage (or,
presumably, to avoid disadvantage), it must have recourse to a more general
and hence more difficult level of political decisionmaking
than others. The world has never heard of such a principle, which is why the
Court's opinion is so long on emotive utterance and so short on relevant
legal citation. And it seems to me most unlikely that any multilevel
democracy can function under such a principle. For whenever a disadvantage is
imposed, or conferral of a benefit is prohibited, at one of the higher levels
of democratic decisionmaking (i.
e., by the state legislature rather than local government, or by the people
at large in the state constitution rather than the legislature), the affected
group has (under this theory) been denied equal protection. To take the
simplest of examples, consider a state law prohibiting the award of municipal
contracts to relatives of mayors or city councilmen. Once such a law is
passed, the group composed of such relatives must, in order to get the benefit
of city contracts, persuade the state legislature -- unlike all other
citizens, who need only persuade the municipality. It is ridiculous to
consider this a denial of equal protection, which is why the Court's theory
is unheard of. The Court might reply that the example I have
given is not a denial of equal protection only because the same
"rational basis" (avoidance of corruption) which renders
constitutional the substantive discrimination against relatives (i. e., the fact that they alone cannot obtain city
contracts) also automatically suffices to sustain what might be called the
electoral-procedural discrimination against them (i.
e., the fact that they must go to the state level to get this changed). This
is of course a perfectly reasonable response, and would explain why
"electoral-procedural discrimination" has not hitherto been heard
of: A law that is valid in its substance is automatically valid in its level
of enactment. But the Court cannot afford to make this argument, for as I
shall discuss next, there is no doubt of a rational basis for the substance
of the prohibition at issue here. The Court's entire novel theory rests upon
the proposition that
there is something special -- something that cannot be justified by normal
"rational basis" analysis -- in making a disadvantaged group (or a nonpreferred group) resort to a higher decision-making
level. That proposition finds no support in law or logic. II I turn next to whether there was a legitimate
rational basis for the substance of the constitutional amendment -- for the
prohibition of special protection for homosexuals. n1
It is unsurprising that the Court avoids discussion of this question, since
the answer is so obviously yes. The case most relevant to the issue before us
today is not even mentioned in the Court's opinion: In Bowers v. Hardwick,
478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986), we held that the
Constitution does not prohibit what virtually all States had done from the
founding of the Republic until very recent years -- making homosexual conduct
a crime. That holding is unassailable, except by those who think that the
Constitution changes to suit current fashions. But in any event it is a given
in the present case: Respondents' briefs did not urge overruling Bowers, and
at oral argument respondents' counsel expressly disavowed any intent to seek
such overruling, Tr. of Oral n1 The
Court evidently agrees that "rational basis" -- the normal test for
compliance with the Equal Protection Clause -- is the governing standard. The
trial court rejected respondents' argument that homosexuals constitute a
"suspect" or "quasi-suspect" class, and respondents
elected not to appeal that ruling to the Supreme Court of Colorado. See 882
P.2d 1335, 1341, n. 3 (1994). And the Court implicitly rejects the Supreme
Court of Colorado's holding, Evans v. Romer, 854
P.2d 1270, 1282 (1993), that Amendment 2 infringes upon a "fundamental
right" of "independently identifiable class[es]"
to "participate equally in the political process." See ante, at
625. But assuming that, in Amendment 2, a person of
homosexual "orientation" is someone who does not engage in
homosexual conduct but merely has a tendency or desire to do so, Bowers still
suffices to establish a rational basis for the provision. If it is rational
to criminalize the conduct, surely it is rational to deny special favor and
protection to those with a self-avowed tendency or desire to engage in the
conduct. Indeed, where criminal sanctions are not involved, homosexual
"orientation" is an acceptable stand-in for homosexual conduct. A
State "does not violate the Equal Protection Clause merely because the
classifications made by its laws are imperfect," Dandridge v. Williams,
397 Moreover, even if the provision regarding
homosexual "orientation" were invalid, respondents' challenge to
Amendment 2 -- which is a facial challenge -- must fail. "A facial
challenge to a
legislative Act is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances
exists under which the Act would be valid." n2 The
Supreme Court of Colorado stated: "We hold that the portions of
Amendment 2 that would remain if only the provision concerning sexual
orientation were stricken are not autonomous and thus, not severable,"
882 P.2d at 1349. That statement was premised, however, on the proposition
that "[the] four characteristics [described in the Amendment -- sexual
orientation, conduct, practices, and relationships] are not truly severable
from one another because each provides nothing more than a different way of
identifying the same class of persons." III The foregoing suffices to establish what the
Court's failure to cite any case remotely in point would lead one to suspect:
No principle set forth in the Constitution, nor even any imagined by this
Court in the past 200 years, prohibits what First, as to its eminent reasonableness. The
Court's opinion contains grim, disapproving hints that Coloradans have been
guilty of "animus" or "animosity" toward homosexuality,
as though that has been established as un-American. Of course it is our moral
heritage that one should not hate any human being or class of human beings.
But I had thought that one could consider certain conduct reprehensible --
murder, for example, or polygamy, or cruelty to animals -- and could exhibit
even "animus" toward such conduct. Surely that is the only sort of
"animus" at issue here: moral disapproval of homosexual conduct,
the same sort of moral disapproval that produced the centuries-old criminal
laws that we held constitutional in Bowers. The But though Coloradans are, as I say, entitled
to be hostile toward homosexual conduct, the fact is that the degree of
hostility reflected by Amendment 2 is the smallest conceivable. The Court's portrayal of Coloradans as a
society fallen victim to pointless, hate-filled "gay-bashing" is so
false as to be comical. There is a problem, however, which arises when
criminal sanction of homosexuality is eliminated but moral and social
disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that
problem; it is evident in many cities of the country, and occasionally
bubbles to the surface of the news, in heated political disputes over such
matters as the introduction into local schools of books teaching that
homosexuality is an optional and fully acceptable "alternative life
style." The problem (a problem, that is, for those who wish to retain
social disapprobation of homosexuality) is that, because those who engage in
homosexual conduct tend to reside in disproportionate numbers in certain
communities, see Record, Exh. MMM, have high
disposable income, see ibid.; App. 254 (affidavit of
Prof. James Hunter), and, of course, care about homosexual-rights issues much
more ardently than the public at large, they possess political power much
greater than their numbers, both locally and statewide. Quite understandably,
they devote this political power to achieving not merely a grudging social
toleration, but full social acceptance, of homosexuality. See, e. g., Jacobs,
The Rhetorical Construction of Rights: The Case of the Gay Rights Movement,
1969-1991, 72 Neb. L. Rev. 723, 724 (1993) ("The task of gay rights
proponents is to move the center of public discourse along a continuum from
the rhetoric of disapprobation, to rhetoric of tolerance, and finally to
affirmation"). By the time Coloradans were asked to vote on
Amendment 2, their exposure to homosexuals' quest for social endorsement was
not limited to newspaper accounts of happenings in places such as That is where Amendment 2 came in. It sought to
counter both the geographic concentration and the disproportionate political
power of homosexuals
by (1) resolving the controversy at the statewide level, and
(2) making the election a single-issue contest for both sides. It put
directly, to all the citizens of the State, the question: Should
homosexuality be given special protection? They answered no. The Court today
asserts that this most democratic of procedures is unconstitutional. Lacking
any cases to establish that facially absurd proposition, it simply asserts
that it must be unconstitutional, because it has never happened before. "[Amendment 2] identifies persons by a
single trait and then denies them protection across the board. The resulting
disqualification of a class of persons from the right to seek specific
protection from the law is unprecedented in our jurisprudence. The absence of
precedent for Amendment 2 is itself instructive . . . . "It is not within our constitutional
tradition to enact laws of this sort. Central both to the idea of the rule of
law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts
remain open on impartial terms to all who seek its assistance." Ante, at
633. As I have noted above, this is proved false every time a state law prohibiting or disfavoring certain conduct is passed, | |
