Romer v. Evans Case Brief

Summary of Romer v. Evans


Amendment 2 makes it illegal for a state agency to adopt anti-homosexual discrimination provisions.


The amendment fails the RR test (but it’s phrased in intermediates scrutiny terms).

A law declaring that it shall be more difficult for one group to seek aid from the government (in the form of a suit for discrimination, for example) is a denial of equal protection in the most literal sense.


D argues that the law simply denies gays special protection, but still allows them equal protection under the laws. BUT, this amendment singles out homosexuals to be stripped of the special protection, while many other classes retain their special protection. Homosexuals are disallowed a protection that other groups seek without constraint.

The amendment also strips gays of protection against arbitrary discrimination afforded by general laws because the language is overly broad. For example, everyone is protected against arbitrary discrimination, but for the statute to be enforced one would have to look to see if homosexuality is an arbitrary characteristic.

  • Legitimate interest– D argues that they passed the law so as not to force landlords, etc. to employ homosexuals if they have an objection to homosexuality. D also argues that it has an interest in conserving resources to fight discrimination against other groups.
    • The desire to harm a group isn’t a LSI.
  • Substantially related– But, the law is not substantially related to these interests. The law is overly broad.
    • There is no rational relationship because the law was enacted simply to burden homosexuals.




Scalia dissent:

  • The amendment has no effect on general legislation; it only strips gays of special treatment.
  • Gays still have equal protection, they just don’t have special protection
  • The state has a LSI in banning sodomy (Bowers), so you’d think the state has an LSI in disfavoring homosexuality. But in this case, the state isn’t even disfavoring homosexuality, they’re just not allowing homosexuality special protection!
  • **“orientation" v. “acts"- the law could have been drawn more narrowly to only include homosexual “acts" (like Bowers), but this doesn’t make it unconstitutional. A lot of classifications are over inclusive. (Discrimination of the conduct people are engaging in or discrimination of the basis of status. The later is much more like race or sex and would be better protected)
  • There’s no hostility in the law.
  • This is the democratic process at work- homosexuals are allowed to petition for anti-discrimination laws and the state is allowed to pass an amendment endorsed by the majority not allowing such laws
  • Compare to polygamy– both involve the citizens preserving sexual morality, but for some reason the majority thinks banning polygamy is okay whereas banning homosexuality isn’t.

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