Romer v. Evans

Majority reasoning

The majority, relying on the Colorado Supreme Court's own reading of the amendment, found that Amendment 2 did far more than deny "special rights"—it stripped gay, lesbian, and bisexual people of the ability to seek any legal protection from discrimination in housing, employment, insurance, education, and government services, and forbade reinstating such protections except by amending the state constitution itself. The Court explained that ordinary laws can disadvantage groups incidentally while still serving some legitimate purpose, but Amendment 2 was unusual because it identified one group by a single trait and imposed a broad, undifferentiated disability on that group across all these areas at once. Because the amendment's sweeping breadth was not connected to any of the reasons Colorado offered—protecting others' freedom of association or conserving resources to fight discrimination against other groups—the Court concluded the law could only be explained by animosity toward gay people, which is not a legitimate government interest. The majority distinguished the amendment from ordinary legislative classifications and held it failed rational basis review, the most forgiving standard of constitutional review. The majority also addressed and rejected the dissent's reliance on Davis v. Beason, explaining that to the extent that case allowed denying the right to vote based on group status, it could not survive without passing strict scrutiny (a tougher standard requiring a compelling justification), a doubtful outcome.

Dissent reasoning

Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, argued that Amendment 2 was not born of animus but was a reasonable democratic effort by Colorado voters to preserve traditional views on sexual morality against a politically powerful and geographically concentrated minority seeking not just tolerance but full endorsement of homosexuality. The dissent argued that since Bowers v. Hardwick had held states could criminalize homosexual conduct, it followed that a state could also simply decline to give special protections against discrimination based on that conduct, a lesser measure. The dissent rejected the majority's theory that requiring a group to seek relief at a higher level of government (the state constitution) rather than locally amounts to a denial of equal protection, calling this principle unprecedented and pointing to historical examples like state constitutional bans on polygamy that similarly required affected groups to seek change at the state level. The dissent also argued that Amendment 2 was comparatively mild because it did not affect general antidiscrimination laws unrelated to seeking special protections, and characterized the majority's invocation of "animosity" as an unfair mischaracterization of ordinary moral disapproval, comparing the ruling to the Court taking sides in a broader cultural dispute rather than applying settled law.