OCTOBER TERM, 1995
Syllabus
ROMER, GOVERNOR OF COLORADO, ET AL.
v.
EVANS ET AL.
CERTIORARI TO THE SUPREME COURT OF COLORADO No. 94-1039. Argued
October 10, 1995-Decided May 20, 1996
After various Colorado municipalities passed ordinances banning
discrimination based on sexual orientation in housing, employment,
education, public accommodations, health and welfare services, and
other transactions and activities, Colorado voters adopted by
statewide referendum "Amendment 2" to the State Constitution, which
precludes all legislative, executive, or judicial action at any
level of state or local government designed to protect the status
of persons based on their "homosexual, lesbian or bisexual
orientation, conduct, practices or relationships." Respondents, who
include aggrieved homosexuals and municipalities, commenced this
litigation in state court against petitioner state parties to
declare Amendment 2 invalid and enjoin its enforcement. The trial
court's grant of a preliminary injunction was sustained by the
Colorado Supreme Court, which held that Amendment 2 was subject to
strict scrutiny under the Equal Protection Clause of the Fourteenth
Amendment because it infringed the fundamental right of gays and
lesbians to participate in the political process. On remand, the
trial court found that the amendment failed to satisfy strict
scrutiny. It enjoined Amendment 2's enforcement, and the State
Supreme Court affirmed.
Held: Amendment 2 violates the Equal Protection Clause.
Pp. 626-636.
(a) The State's principal argument that Amendment 2 puts gays
and lesbians in the same position as all other persons by denying
them special rights is rejected as implausible. The extent of the
change in legal status effected by this law is evident from the
authoritative construction of Colorado's Supreme Court-which
establishes that the amendment's immediate effect is to repeal all
existing statutes, regulations, ordinances, and policies of state
and local entities barring discrimination based on sexual
orientation, and that its ultimate effect is to prohibit any
governmental entity from adopting similar, or more protective,
measures in the future absent state constitutional amendment-and
from a review of the terms, structure, and operation of the
ordinances that would be repealed and prohibited by Amendment 2.
Even if, as the State contends, homosexuals can find protection in
laws and policies of general application, Amendment 2 goes well
beyond merely depriving them of special rights. It imposes a broad
disability upon those persons alone, forbidding them, but no
others, to seek specific legal protection
621
from injuries caused by discrimination in a wide range of public
and private transactions. Pp. 626-631.
(b) In order to reconcile the Fourteenth Amendment's promise
that no person shall be denied equal protection with the practical
reality that most legislation classifies for one purpose or
another, the Court has stated that it will uphold a law that
neither burdens a fundamental right nor targets a suspect class so
long as the legislative classification bears a rational relation to
some independent and legitimate legislative end. See,
e.
g., Heller v.
Doe, 509 U. S. 312, 319-320.
Amendment 2 fails, indeed defies, even this conventional inquiry.
First, the amendment is at once too narrow and too broad,
identifying persons by a single trait and then denying them the
possibility of protection across the board. This disqualification
of a class of persons from the right to obtain specific protection
from the law is unprecedented and is itself a denial of equal
protection in the most literal sense. Second, the sheer breadth of
Amendment 2, which makes a general announcement that gays and
lesbians shall not have any particular protections from the law, is
so far removed from the reasons offered for it, i.
e.,
respect for other citizens' freedom of association, particularly
landlords or employers who have personal or religious objections to
homosexuality, and the State's interest in conserving resources to
fight discrimination against other groups, that the amendment
cannot be explained by reference to those reasons; the amendment
raises the inevitable inference that it is born of animosity toward
the class that it affects. Amendment 2 cannot be said to be
directed to an identifiable legitimate purpose or discrete
objective. It is a status-based classification of persons
undertaken for its own sake, something the Equal Protection Clause
does not permit. Pp. 631-636.
882 P. 2d 1335, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J.,
and THOMAS, J., joined,
post, p. 636.
Timothy M. Tymkovich, Solicitor General of Colorado,
argued the cause for petitioners. With him on the briefs were
Gale A. Norton, Attorney General,
Stephen K.
ErkenBrack, Chief Deputy Attorney General,
John Daniel
Dailey and
Paul Farley, Deputy Attorneys General, and
Rex E. Lee and
Carter G.
Phillips, Special
Assistant Attorneys General.
Jean E. Dubofsky argued the cause for respondents.
With her on the brief for respondents Evans et al. were
Rod-
622
Counsel
erick M. Hills, Jr., Matthew Coles, Steven R. Shapiro, Clyde
J. Wadsworth, Suzanne B. Goldberg, Jeanne Winer, Gregory A.
Eurich, David H. Miller, Darlene M. Ebert, Joseph N. de Raismes
III, and Walter A. Smith, Jr. John P. Worcester and Edward
M. Caswall filed a brief for respondents City of Aspen et al. *
*Briefs of
amici curiae urging reversal were filed for
the State of Alabama et al. by
Charles J.
Cooper, and by the Attorneys General for their respective
States as follows:
Jeff Sessions of Alabama,
Daniel E.
Lungren of California,
Alan G.
Lance of Idaho,
Don Stenberg of Nebraska,
Charles Molony Condon of
South Carolina,
Mark Barnett of South Dakota, and
James S.
Gilmore III of Virginia; for the American
Center for Law and Justice Family Life Project by
Jay Alan
Sekulow and
Keith A. Fournier; for the Christian Legal
Society et al. by
Steven T. McFarland, Samuel B. Casey,
Gregory S.
Baylor, and
John K. Hulston Hall; for
Colorado for Family Values by
Robert K. Skolrood; for
Concerned Women for America, Inc., by
David J.
Myers and
Wendell R. Bird; for Equal Rights, Not
Special Rights, Inc., by
Michael A. Carvin, William L.
McGrath, and
Robert H. Bork; for the Family Research
Council by
Melissa Wells-Petry; for the Pacific Legal
Foundation by
Anthony T. Caso and
Deborah J.
La Fetra; and for the Oregon Citizens Alliance et al. by
Lawrence J. Hall.
Briefs of
amici curiae urging affirmance were filed for
the State of Oregon et al. by
Theodore R. Kulongoski,
Attorney General of Oregon,
Thomas A. Balmer, Deputy
Attorney General,
Virginia L. Linder, Solicitor General,
Michael D. Reynolds, Assistant Solicitor General, and
Rives Kistler, Assistant Attorney General,
Thomas
J. Miller, Attorney General of Iowa,
J.
Joseph Curran, Jr., Attorney General of Maryland,
Scott
Harshbarger, Attorney General of Massachusetts,
Hubert H.
Humphrey III, Attorney General of Minnesota,
Frankie Sue Del
Papa, Attorney General of Nevada,
Christine O.
Gregoire, Attorney General of Washington, and
Garland
Pinkston, Jr., Acting Corporation Counsel of the District of
Columbia; for the City of Atlanta et al. by
Louise H. Renne,
Dennis Aftergut, Burk E. Delventhal, Julia M. C.
Friedlander, Mary Carole Cooney, Robin Joy Shahar, Neal M.
Janey, Stephen H. Clark, James K. Hahn, David I. Schulman, Eunice
Gibson, Paul A. Crotty, Leonard A. Kerner, Jeffrey L. Rogers, Linda
Meng, Janet E. Halley, Mark H. Sidran, Henry W Underhill, Jr.,
and
Susan S.
Sher; for Affirmation: United Methodists
for Gay, Lesbian and Bisexual Concerns et al. by
Celeste
McCollough; for the American Bar Association by
George E.
Bushnell, Jr.; for the American Association on Mental
Retardation et al. by
James W Ellis and
Maureen A.
Sanders; for The American Federation of State, County and
623
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.
Ferguson, 163 U. S. 537, 559 (1896)
(dissenting opinion). Unheeded then, those words now are understood
to state a commitment to the law's neutrality where the rights of
persons are at stake. The Equal Protection Clause enforces this
principle and today requires us to hold invalid a provision of
Colorado's Constitution.
I
The enactment challenged in this case is an amendment to the
Constitution of the State of Colorado, adopted in a 1992 statewide
referendum. The parties and the state courts refer to it as
"Amendment 2," its designation when submitted to the voters. The
impetus for the amendment and the contentious campaign that
preceded its adoption came in large part from ordinances that had
been passed in various Colorado municipalities. For example, the
cities of Aspen and Boulder and the city and County of Denver each
had
Municipal Employees, AFL-CIO, by
John C.
Dempsey
and
Larry P. Weinberg; for the American Friends Service
Committee et al. by
Stark Ritchie; for the American
Psychological Association et al. by
Paul M. Smith, James L.
McHugh, Jr., and
Richard G.
Taranto; for the
Asian American Legal Defense and Education Fund et al. by
Eben
Moglen and
Pamela S.
Karlan; for the Colorado Bar
Association et al. by
Stephen V. Bomse, Martha Minow, and
Frances A. Koncilja; for the Gay and Lesbian Lawyers of
Philadelphia by
Cletus P. Lyman; for the NAACP Legal Defense
and Educational Fund, Inc., et al. by
Eric Schnapper, Elaine R.
Jones, Theodore M. Shaw, Antonia Hernandez, Judith L. Lichtman,
and
Donna R. Lenhoff; for the National Bar Association by
J. Clay Smith, Jr.; for the National Education
Association et al. by
Robert H. Chanin and
John M.
West; for James E. Andrews by
Eric J.
Graninger; and for Laurence H. Tribe et al. by
Mr. Tribe,
pro se, John Hart Ely, pro se, Philip
Chai R. Feldblum filed a brief for the Human Rights
Campaign Fund et al. as
amici curiae.
624
enacted ordinances which banned discrimination in many
transactions and activities, including housing, employment,
education, public accommodations, and health and welfare services.
Denver Rev. Municipal Code, Art. IV; §§ 28-91 to 28-116 (1991);
Aspen Municipal Code § 13-98 (1977); Boulder Rev. Code §§ 12-1-1 to
12-1-11 (1987). What gave rise to the statewide controversy was the
protection the ordinances afforded to persons discriminated against
by reason of their sexual orientation. See Boulder Rev. Code §
12-1-1 (defining "sexual orientation" as "the choice of sexual
partners, i. e., bisexual, homosexual or heterosexual"); Denver
Rev. Municipal Code, Art. IV, § 28-92 (defining "sexual
orientation" as "[t]he status of an individual as to his or her
heterosexuality, homosexuality or bisexuality"). Amendment 2
repeals these ordinances to the extent they prohibit discrimination
on the basis of "homosexual, lesbian or bisexual orientation,
conduct, practices or relationships." Colo. Const., Art. II, §
30b.
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.
625
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 County of Denver. Among the
plaintiffs (respondents here) were homosexual persons, some of them
government employees. They alleged that enforcement of Amendment 2
would subject them to immediate and substantial risk of
discrimination on the basis of their sexual orientation. Other
plaintiffs (also respondents here) included the three
municipalities whose ordinances we have cited and certain other
governmental entities which had acted earlier to protect
homosexuals from discrimination but would be prevented by Amendment
2 from continuing to do so. Although Governor Romer had been on
record opposing the adoption of Amendment 2, he was named in his
official capacity as a defendant, together with the Colorado
Attorney General and the State of Colorado.
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 (Colo. 1993)
(Evans I). To
reach this conclusion, the state court relied on our voting rights
cases,
e. g., Reynolds v.
Sims, 377 U. S. 533 (1964);
Carrington v.
Rash, 380 U. S. 89 (1965);
Harper v.
Virginia Bd. of Elections, 383 U. S. 663
(1966); Williams v.
Rhodes, 393 U. S. 23 (1968), and
on our precedents involving discriminatory restructuring of
governmental decisionmaking, see,
e. g., Hunter v.
Erickson, 393 U. S. 385 (1969);
Reitman v.
Mulkey, 387 U.
S. 369 (1967);
Washington v.
Seattle School Dist.
No.1, 458 U. S.
457 (1982); Gordon v.
Lance, 403 U. S. 1 (1971). On
remand, the State advanced various arguments in an effort to show
that
626
Amendment 2 was narrowly tailored to serve compelling interests,
but the trial court found none sufficient. It enjoined enforcement
of Amendment 2, and the Supreme Court of Colorado, in a second
opinion, affirmed the ruling. 882 P. 2d 1335 (1994)
(Evans
II). We granted certiorari, 513 U. S. 1146 (1995), and now
affirm the judgment, but on a rationale different from that adopted
by the State Supreme Court.
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 Colorado's
Supreme Court. The state court, deeming it unnecessary to determine
the full extent of the amendment's reach, found it invalid even on
a modest reading of its implications. The critical discussion of
the amendment, set out in
Evans I, is as follows:
"The immediate objective of Amendment 2 is, at a minimum, to
repeal existing statutes, regulations, ordinances, and policies of
state and local entities that barred discrimination based on sexual
orientation. See Aspen, Colo., Mun. Code § 13-98 (1977)
(prohibiting discrimination in employment, housing and public
accommodations on the basis of sexual orientation); Boulder, Colo.,
Rev. Code §§ 12-1-2 to -4 (1987) (same); Denver, Colo., Rev. Mun.
Code art. IV, §§28-91 to -116 (1991) (same); Executive Order No.
D0035 (December 10, 1990) (prohibiting employment discrimination
for 'all state employees, classified and exempt' on the basis of
sexual orientation); Colorado Insurance Code, § 10-3-1104, 4A C. R.
S. (1992 Supp.) (forbidding health insurance providers from
determining insurability and premiums based on an applicant's, a
beneficiary's, or an insured's
627
sexual orientation); and various prOVISIOns prohibiting
discrimination based on sexual orientation at state colleges.26
"26 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.
"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 12841285, and n. 26.
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
(1995). The duty was a general one and did not specify protection
for particular groups. The common-law rules, however, proved
628
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 (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).
Colorado's state and municipal laws typify this emerging
tradition of statutory protection and follow a consistent pattern.
The laws first enumerate the persons or entities subject to a duty
not to discriminate. The list goes well beyond the entities covered
by the common law. The Boulder ordinance, for example, has a
comprehensive definition of entities deemed places of "public
accommodation." They include "any place of business engaged in any
sales to the general public and any place that offers services,
facilities, privileges, or advantages to the general public or that
receives financial support through solicitation of the general
public or through governmental subsidy of any kind." Boulder Rev.
Code § 12-1-1(j) (1987). The Denver ordinance is of similar
breadth, applying, for example, to hotels, restaurants, hospitals,
dental clinics, theaters, banks, common carriers, travel and
insurance agencies, and "shops and stores dealing with goods or
services of any kind," Denver Rev. Municipal Code, Art. IV, § 28-92
(1991).
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, Colorado's state and local
governments have
629
not limited antidiscrimination laws to groups that have so far
been given the protection of heightened equal protection scrutiny
under our cases. See,
e. g., J. E. B. v.
Alabama ex rel. T. B., 511 U. S. 127, 135 (1994)
(sex);
Lalli v.
Lalli, 439 U. S. 259, 265 (1978)
(illegitimacy);
McLaughlin v.
Florida, 379 U. S. 184, 191-192
(1964) (race);
Oyama v.
California, 332 U. S. 633 (1948)
(ancestry). Rather, they set forth an extensive catalog of traits
which cannot be the basis for discrimination, including age,
military status, marital status, pregnancy, parenthood, custody of
a minor child, political affiliation, physical or mental disability
of an individual or of his or her associates-and, in recent times,
sexual orientation. Aspen Municipal Code § 13-98(a)(1) (1977);
Boulder Rev. Code §§ 12-1-1 to 12-1-4 (1987); Denver Rev. Municipal
Code, Art. IV, §§28-92 to 28-119 (1991); Colo. Rev. Stat. §§
24-34-401 to 24-34-707 (1988 and Supp. 1995).
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 §§ 12-1-2, 12-1-3 (1987);
Denver Rev. Municipal Code, Art. IV; §§ 28-93 to 28-95, 28-97
(1991).
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 Colorado government. The State Supreme Court cited two examples
of protections in the governmental sphere that are now rescinded
and may not be reintroduced. The first is Colorado Executive Order
D0035 (1990), which forbids employment discrimination against "'all
state employees, classified and exempt' on the basis of sexual
orientation." 854 P. 2d, at 1284. Also repealed, and now
forbid-
630
den, are "various provisions prohibiting discrimination based on
sexual orientation at state colleges."
Id., at 1284, 1285.
The repeal of these measures and the prohibition against their
future reenactment demonstrate that Amendment 2 has the same force
and effect in Colorado's governmental sector as it does elsewhere
and that it applies to policies as well as ordinary
legislation.
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 Su-
631
preme Court made the limited observation that the amendment is
not intended to affect many antidiscrimination laws protecting non
suspect 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 Colorado to amend
the State Constitution or perhaps, on the State's view, by trying
to pass helpful laws of general applicability. This is so no matter
how local or discrete the harm, no matter how public and widespread
the injury. We find nothing special in the protections Amendment 2
withholds. These are protections taken for granted by most people
either because they already have them or do not need them; these
are protections against exclusion from an almost limitless number
of transactions and endeavors that constitute ordinary civic life
in a free society.
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 Mass. v.
Feeney, 442 U.
S. 256, 271-272 (1979);
F. S.
Royster Guano Co.
v.
Virginia, 253 U. S. 412, 415
(1920). We have attempted to reconcile the principle with the
reality by stating that, if a law neither burdens a fundamental
right nor targets a suspect class, we will uphold the legislative
classification so long as it bears a rational relation to some
legitimate end. See,
e. g., Heller v.
Doe, 509 U. S. 312, 319-320
(1993).
632
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 (1976) (tourism benefits justified classification
favoring pushcart vendors of certain longevity);
Williamson
v.
Lee Optical of Okla., Inc., 348 U. S. 483 (1955)
(assumed health concerns justified law favoring optometrists over
opticians);
Railway Express Agency, Inc. v.
New York,
336 U. S. 106
(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 (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
633
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 U. S. 166, 181 (1980)
(STEVENS, J., concurring) ("If the adverse impact on the disfavored
class is an apparent aim of the legislature, its impartiality would
be suspect").
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; "[d]iscriminations 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 U. S. 32, 37-38
(1928).
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 U. S. 629, 635 (1950)
(quoting
Shelley v.
Kraemer, 334 U. S. 1, 22 (1948)).
Respect for this principle explains why laws singling out a certain
class of citizens for disfavored legal status or general hardships
are rare. A law declaring that in general it shall be more
difficult for one group of citizens than for all others to seek aid
from the government is itself a denial of equal protection of the
laws in the most literal sense. "The guaranty of 'equal protection
of the laws
634
is a pledge of the protection of equal laws.'"
Skinner v.
Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942)
(quoting
Yick Wo v.
Hopkins, 118 U. S. 356, 369
(1886)).
Davis v.
Beason, 133 U. S. 333 (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."
Id., at
347. To the extent
Davis held that persons advocating a
certain practice may be denied the right to vote, it is no longer
good law.
Brandenburg v.
Ohio, 395 U. S. 444 (1969)
(per curiam). To the extent it held that the groups
designated in the statute may be deprived of the right to vote
because of their status, its ruling could not stand without
surviving strict scrutiny, a most doubtful outcome.
Dunn v.
Blumstein, 405
U. S. 330, 337 (1972); cf.
United States v.
Brown, 381 U.
S. 437 (1965);
United States v.
Robel, 389 U. S. 258 (1967). To
the extent
Davis held that a convicted felon may be denied
the right to vote, its holding is not implicated by our decision
and is unexceptionable. See
Richardson v.
Ramirez,
418 U. S. 24
(1974).
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. "[I]f 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.
Moreno, 413 U. S. 528, 534
635
(1973). Even laws enacted for broad and ambitious purposes often
can be explained by reference to legitimate public policies which
justify the incidental disadvantages they impose on certain
persons. Amendment 2, however, in making a general announcement
that gays and lesbians shall not have any particular protections
from the law, inflicts on them immediate, continuing, and real
injuries that outrun and belie any legitimate justifications that
may be claimed for it. We conclude that, in addition to the
far-reaching deficiencies of Amendment 2 that we have noted, the
principles it offends, in another sense, are conventional and
venerable; a law must bear a rational relationship to a legitimate
governmental purpose,
Kadrmas v.
Dickinson Public
Schools, 487 U. S. 450, 462 (1988), and Amendment 2 does
not.
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. Colorado also
cites its interest in conserving resources to fight discrimination
against other groups. The breadth of the amendment is so far
removed from these particular justifications that we find it
impossible to credit them. We cannot say that Amendment 2 is
directed to any identifiable legitimate purpose or discrete
objective. It is a status-based enactment divorced from any factual
context from which we could discern a relationship to legitimate
state interests; it is a classification of persons undertaken for
its own sake, something the Equal Protection Clause does not
permit. "[C]lass legislation ... [is] obnoxious to the prohibitions
of the Fourteenth Amendment .... "
Civil Rights Cases, 109
U. S., at 24.
We must conclude that Amendment 2 classifies homosexuals not to
further a proper legislative end but to make them unequal to
everyone else. This Colorado cannot do. A State cannot so deem a
class of persons a stranger to its laws. Amendment 2 violates the
Equal Protection Clause,
636
and the judgment of the Supreme Court of Colorado is
affirmed.
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 United
States and by this Court.
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 (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 Colorado constitutional
amendment (and to the preferential laws against which the amendment
was directed). Since the Constitution of the United States says
nothing about this subject, it is left to be resolved by normal
democratic means, including the democratic adoption of provisions
in state constitutions. This Court has no business imposing upon
all Americans the resolution favored by the elite class from which
the Members of this institution are selected, pronouncing that
"animosity" toward homosexuality,
ante, at 634, is evil. I
vigorously dissent.
637
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 Colorado court stated:
"[I]t 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),
lOA C. R. S. (1994 Supp.); marital or family status, §
24-34-502(1)(a), lOA C. R. S. (1994 Supp.); veterans' status, §
28-3-506, llB C. R. S. (1989); and for any legal, off-duty conduct
such as smoking tobacco, § 24-34-402.5, lOA 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." Id., at 1346, n. 9 (emphasis added).
The Court utterly fails to distinguish this portion of the
Colorado court's opinion. Colorado Rev. Stat. § 24-34-402.5 (Supp.
1995), which this passage authoritatively declares
not to be
affected by Amendment 2, was respondents' primary
638
example of a generally applicable law whose protections would be
unavailable to homosexuals under Amendment 2. See Brief for
Respondents Evans et al. 11-12. The clear import of the Colorado
court's conclusion that it is not affected is that "general laws
and policies that prohibit arbitrary discrimination" would continue
to prohibit discrimination on the basis of homosexual conduct as
well. This analysis, which is fully in accord with (indeed, follows
inescapably from) the text of the constitutional provision, lays to
rest such horribles, raised in the course of oral argument, as the
prospect that assaults upon homosexuals could not be prosecuted.
The amendment prohibits
special treatment of homosexuals,
and nothing more. It would not affect, for example, a requirement
of state law that pensions be paid to all retiring state employees
with a certain length of service; homosexual employees, as well as
others, would be entitled to that benefit. But it would prevent the
State or any municipality from making death-benefit payments to the
"life partner" of a homosexual when it does not make such payments
to the long-time roommate of a nonhomosexual employee. Or again, it
does not affect the requirement of the State's general insurance
laws that customers be afforded coverage without discrimination
unrelated to anticipated risk. Thus, homosexuals could not be
denied coverage, or charged a greater premium, with respect to auto
collision insurance; but neither the State nor any municipality
could require that distinctive health insurance risks associated
with homosexuality (if there are any) be ignored.
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 ac-
639
corded 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.,
640
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
decisionmaking 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.1 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 (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
1 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.
641
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 Arg. 53. If it is constitutionally
permissible for a State to make homosexual conduct criminal, surely
it is constitutionally permissible for a State to enact other laws
merely
disfavoring homosexual conduct. (As the Court of
Appeals for the District of Columbia Circuit has aptly put it: "If
the Court [in
Bowers] was unwilling to object to state laws
that criminalize the behavior that defines the class, it is hardly
open ... to conclude that state sponsored discrimination against
the class is invidious. After all, there can hardly be more
palpable discrimination against a class than making the conduct
that defines the class criminal."
Padula v.
Webster,
822 F.2d
97, 103 (1987).) And
a fortiori it is constitutionally
permissible for a State to adopt a provision
not even
disfavoring homosexual conduct, but merely prohibiting all levels
of state government from bestowing
special protections upon
homosexual conduct. Respondents (who, unlike the Court, cannot
afford the luxury of ignoring inconvenient precedent) counter
Bowers with the argument that a greater-includes-the-Iesser
rationale cannot justify Amendment 2's application to individuals
who do not engage in homosexual acts, but are merely of homosexual
"orientation." Some Courts of Appeals have concluded that, with
respect to laws of this sort at least, that is a distinction
without a difference. See
Equality Foundation of Greater
Cincinnati, Inc. v.
Cincinnati, 54
F.3d 261, 267 (CA6 1995) ("[F]or purposes of these proceedings,
it is virtually impossible to distinguish or separate individuals
of a particular
orientation which predisposes them toward a
particular sexual conduct from those who actually
engage in
that particular type of sexual conduct");
Steffan v.
Perry, 41 F.3d
677, 689-690 (CADC 1994). The Supreme Court of Colorado itself
appears to be of this view. See 882 P. 2d, at
642
1349-1350 ("Amendment 2 targets this class of persons based on
four characteristics: sexual orientation; conduct; practices, and
relationships. Each characteristic provides a potentially different
way of identifying that class of persons who are gay, lesbian, or
bisexual. These four characteristics are not truly severable from
one another because each provides nothing more than a different way
of identifying
the same class of persons") (emphasis
added).
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 U. S. 471, 485
(1970). Just as a policy barring the hiring of methadone users as
transit employees does not violate equal protection simply because
some methadone users pose no threat to passenger safety, see
New York City Transit Authority v.
Beazer, 440 U. S. 568 (1979), and
just as a mandatory retirement age of 50 for police officers does
not violate equal protection even though it prematurely ends the
careers of many policemen over 50 who still have the capacity to do
the job, see
Massachusetts Bd. of Retirement v.
Murgia, 427 U.
S. 307 (1976)
(per curiam), Amendment 2 is not
constitutionally invalid simply because it could have been drawn
more precisely so as to withdraw special antidiscrimination
protections only from those of homosexual "orientation" who
actually engage in homosexual conduct. As JUSTICE KENNEDY wrote,
when he was on the Court of Appeals, in a case involving discharge
of homosexuals from the Navy: "Nearly any
643
statute which classifies people may be irrational as applied in
particular cases. Discharge of the particular plaintiffs before us
would be rational, under minimal scrutiny, not because their
particular cases present the dangers which justify Navy policy, but
instead because the general policy of discharging all homosexuals
is rational."
Beller v.
Middendorf, 632 F.2d
788, 808-809, n. 20 (CA9 1980) (citation omitted). See also
Ben-Shalom v.
Marsh, 881 F.2d
454, 464 (CA7 1989), cert. denied, 494 U. S. 1004 (1990).
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."
United States v.
Salerno, 481 U. S. 739, 745
(1987). It would not be enough for respondents to establish (if
they could) that Amendment 2 is unconstitutional as applied to
those of homosexual "orientation"; since, under
Bowers,
Amendment 2 is unquestionably constitutional as applied to those
who engage in homosexual conduct, the facial challenge cannot
succeed. Some individuals of homosexual "orientation" who do not
engage in homosexual acts might successfully bring an as-applied
challenge to Amendment 2, but so far as the record indicates, none
of the respondents is such a person. See App. 4-5 (complaint
describing each of the individual respondents as either "a gay man"
or "a lesbian").2
2 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." Id., at 1349-1350
(emphasis added). As I have discussed above, if that premise is
true-if the
644
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
Colorado has done here. But the case for Colorado is much stronger
than that. What it has done is not only unprohibited, but eminently
reasonable, with close, congressionally approved precedent in
earlier constitutional practice.
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 Colorado amendment does not,
to speak entirely precisely, prohibit giving favored status to
people who are
homosexuals; they can be favored for many
reasons-for example, because they are senior citizens or members of
racial minorities. But it prohibits giving them favored status
because of their homosexual conduct-that is, it prohibits
favored status
for homosexuality.
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 conceiv-
entire class affected by the Amendment takes part in homosexual
conduct, practices, and relationships-Bowers alone suffices to
answer all constitutional objections. Separate consideration of
persons of homosexual "orientation" is necessary only if one
believes (as the Supreme Court of Colorado did not) that that is a
distinct class.
645
able. The Court's portrayal of Coloradans as a society fallen
victim to pointless, hate-filled "gay-bashing" is so false as to be
comical. Colorado not only is one of the 25 States that have
repealed their antisodomy laws, but was among the first to do so.
See 1971 Colo. Sess. Laws, ch. 121, § 1. But the society that
eliminates criminal punishment for homosexual acts does not
necessarily abandon the view that homosexuality is morally wrong
and socially harmful; often, abolition simply reflects the view
that enforcement of such criminal laws involves unseemly intrusion
into the intimate lives of citizens. Cf. Brief for Lambda Legal
Defense and Education Fund, Inc., et al. as
Amici Curiae in
Bowers v.
Hardwick, O. T. 1985, No. 85-140, p. 25, n.
21 (antisodomy statutes are "unenforceable by any but the most
offensive snooping and wasteful allocation of law enforcement
resources"); Kadish, The Crisis of Overcriminalization, 374 The
Annals of the American Academy of Political and Social Science 157,
161 (1967) ("To obtain evidence [in sodomy cases], police are
obliged to resort to behavior which tends to degrade and demean
both themselves personally and law enforcement as an
institution").
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
646
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., J acobs,
The Rhetorical Construction of Rights: The Case of the Gay Rights
Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993) ("[T]he 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 N ew
York, Los Angeles, San Francisco, and Key West. Three Colorado
cities-Aspen, Boulder, and Denver-had enacted ordinances that
listed "sexual orientation" as an impermissible ground for
discrimination, equating the moral disapproval of homosexual
conduct with racial and religious bigotry. See Aspen Municipal Code
§ 13-98 (1977); Boulder Rev. Municipal Code §§ 12-1-1 to 12-1-11
(1987); Denver Rev. Municipal Code, Art. IV, §§28-91 to 28-116
(1991). The phenomenon had even appeared statewide: The Governor of
Colorado had signed an executive order pronouncing that "in the
State of Colorado we recognize the diversity in our pluralistic
society and strive to bring an end to discrimination in any form,"
and directing state agencyheads to "ensure non-discrimination" in
hiring and promotion based on, among other things, "sexual
orientation." Executive Order No. D0035 (Dec. 10, 1990). I do not
mean to be critical of these legislative successes; homosexuals are
as entitled to use the legal system for reinforcement of their
moral sentiments as is the rest of society. But they are subject to
being countered by lawful, democratic countermeasures as well.
647
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, because
such a law prevents the adversely affected groupwhether drug
addicts, or smokers, or gun owners, or motorcyclists-from changing
the policy thus established in "each of [the] parts" of the State.
What the Court says is even demonstrably false at the
constitutional level. The Eighteenth Amendment to the Federal
Constitution, for example, deprived those who drank alcohol not
only of the power to alter the policy of prohibition
locally
or through
state legislation, but even of the power to alter
it through
state constitutional amendment or
federal
legislation. The
648
Establishment Clause of the First Amendment prevents theocrats
from having their way by converting their fellow citizens at the
local, state, or federal statutory level; as does the Republican
Form of Government Clause prevent monarchists.
But there is a much closer analogy, one that involves precisely
the effort by the majority of citizens to preserve its view of
sexual morality statewide, against the efforts of a geographically
concentrated and politically powerful minority to undermine it. The
Constitutions of the States of Arizona, Idaho, New Mexico,
Oklahoma, and Utah
to this day contain provisions stating
that polygamy is "forever prohibited." See Ariz. Const., Art. XX,
par. 2; Idaho Const., Art. I, § 4; N. M. Const., Art. XXI, § 1;
Okla. Const., Art. I, § 2; Utah Const., Art. III, § 1. Polygamists,
and those who have a polygamous "orientation," have been "singled
out" by these provisions for much more severe treatment than merely
denial of favored status; and that treatment can only be changed by
achieving amendment of the state constitutions. The Court's
disposition today suggests that these provisions are
unconstitutional, and that polygamy must be permitted in these
States on a state-legislated, or perhaps even localoption,
basis-unless, of course, polygamists for some reason have fewer
constitutional rights than homosexuals.
The United States Congress, by the way,
required the
inclusion of these antipolygamy provisions in the Constitutions of
Arizona, New Mexico, Oklahoma, and Utah, as a condition of their
admission to statehood. See Arizona Enabling Act, 36 Stat. 569; New
Mexico Enabling Act, 36 Stat. 558; Oklahoma Enabling Act, 34 Stat.
269; Utah Enabling Act, 28 Stat. 108. (For Arizona, New Mexico, and
Utah, moreover, the Enabling Acts required that the antipolygamy
provisions be "irrevocable without the consent of the United States
and the people of said State"-so that not only were "each of [the]
parts" of these States not "open on impartial terms" to
polygamists, but even the States as a whole were not;
649
polygamists would have to persuade the whole country to their
way of thinking.) Idaho adopted the constitutional provision on its
own, but the 51st Congress, which admitted Idaho into the Union,
found its Constitution to be "republican in form
and ... in
conformity with the Constitution of the United States." Act of
Admission of Idaho, 26 Stat. 215 (emphasis added). Thus, this
"singling out" of the sexual practices of a single group for
statewide, democratic vote-so utterly alien to our constitutional
system, the Court would have us believe-has not only happened, but
has received the explicit approval of the United States
Congress.
I cannot say that this Court has explicitly approved any of
these state constitutional provisions; but it has approved a
territorial statutory provision that went even further, depriving
polygamists of the ability even to achieve a constitutional
amendment, by depriving them of the power to vote. In
Davis
v.
Beason, 133
U. S. 333 (1890), Justice Field wrote for a unanimous
Court:
"In our judgment, § 501 of the Revised Statutes of Idaho
Territory, which provides that 'no person ... who is a bigamist or
polygamist or who teaches, advises, counsels, or encourages any
person or persons to become bigamists or polygamists, or to commit
any other crime defined by law, or to enter into what is known as
plural or celestial marriage, or who is a member of any order,
organization or association which teaches, advises, counsels, or
encourages its members or devotees or any other persons to commit
the crime of bigamy or polygamy, or any other crime defined by law
... is permitted to vote at any election, or to hold any position
or office of honor, trust, or profit within this Territory,' is
not open to any constitutional or legal objection." Id., at
346-347 (emphasis added).
To the extent, if any, that this opinion permits the imposition
of adverse consequences upon mere abstract advocacy of po-
650
lygamy, it has, of course, been overruled by later cases. See
Brandenburg v.
Ohio, 395 U. S. 444 (1969)
(per curiam). But the proposition that polygamy can be
criminalized, and those engaging in that crime deprived of the
vote, remains good law. See
Richardson v.
Ramirez,
418 U. S. 24, 53
(1974). Beason rejected the argument that "such
discrimination is a denial of the equal protection of the laws."
Brief for Appellant in
Davis v.
Beason, O. T. 1889,
No. 1261, p. 41. Among the Justices joining in that rejection were
the two whose views in other cases the Court today treats as equal
protection lodestars-Justice Harlan, who was to proclaim in
Plessy v.
Ferguson, 163 U. S. 537, 559 (1896)
(dissenting opinion), that the Constitution "neither knows nor
tolerates classes among citizens," quoted
ante, at 623, and
Justice Bradley, who had earlier declared that "class legislation
... [is] obnoxious to the prohibitions of the Fourteenth
Amendment,"
Civil Rights Cases, 109 U. S. 3, 24 (1883),
quoted
ante, at 635.3
3 The Court labors mightily to get around
Beason, see
ante, at 634, but cannot escape the central fact that this
Court found the statute at issuewhich went much further than
Amendment 2, denying polygamists not merely special treatment but
the right
to vote-"not open to any constitutional or legal
objection," rejecting the appellant's argument (much like the
argument of respondents today) that the statute impermissibly
"singleEd] him out," Brief for Appellant in
Davis v.
Beason, O. T. 1889, No. 1261, p. 41. The Court adopts my
conclusions that (a) insofar as
Beason permits the
imposition of adverse consequences based upon mere advocacy, it has
been overruled by subsequent cases, and (b) insofar as
Beason holds that convicted felons may be denied the right
to vote, it remains good law. To these conclusions, it adds
something new: the claim that "[t]o the extent
[Beason] held
that the groups designated in the statute may be deprived of the
right to vote because of their status, its ruling could not stand
without surviving strict scrutiny, a most doubtful outcome."
Ante, at 634. But if that is so, it is only because we have
declared the right
to vote to be a "fundamental political
right," see,
e. g., Dunn v.
Blumstein,
405 U. S. 330,
336 (1972), deprivation of which triggers strict scrutiny.
Amendment 2, of course, does not deny the fundamental right to
vote, and the Court rejects the Colorado court's view that there
exists a fundamental right to participate in the political process.
Strict scrutiny is thus not in play here. See
ante, at 631.
Finally, the Court's
651
This Court cited
Beason with approval as recently as
1993, in an opinion authored by the same Justice who writes for the
Court today. That opinion said: "[A]dverse impact will not always
lead to a finding of impermissible targeting. For example, a social
harm may have been a legitimate concern of government for reasons
quite apart from discrimination .... See,
e. g., ... Davis
v.
Beason, 133
U. S. 333 (1890)."
Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508
U. S. 520, 535 (1993). It remains to be explained how § 501 of
the Idaho Revised Statutes was not an "impermissible targeting" of
polygamists, but (the much more mild) Amendment 2 is an
"impermissible targeting" of homosexuals. Has the Court concluded
that the perceived social harm of polygamy is a "legitimate concern
of government," and the perceived social harm of homosexuality is
not?
IV
I strongly suspect that the answer to the last question is yes,
which leads me to the last point I wish to make: The Court today,
announcing that Amendment 2 "defies ... conventional
[constitutional] inquiry,"
ante, at 632, and "confounds
[the] normal process of judicial review,"
ante, at 633,
employs a constitutional theory heretofore unknown to frustrate
Colorado's reasonable effort to preserve traditional American moral
values. The Court's stern disapproval of "animosity" towards
homosexuality might be compared with what an earlier Court
(including the revered Justices Harlan and Bradley) said in
Murphy v.
Ramsey, 114 U. S. 15 (1885),
rejecting a constitutional challenge to a United States statute
that denied the franchise in federal territories to those who
engaged in polygamous cohabitation:
"[C]ertainly no legislation can be supposed more wholesome and
necessary in the founding of a free, self-
suggestion that § 501 of the Revised Statutes of Idaho, and
Amendment 2, deny rights on account of "status" (rather than
conduct) opens up a broader debate involving the significance of
Bowers to this case, a debate which the Court is otherwise
unwilling to join, see
supra, at 640-643.
652
governing commonwealth, fit to take rank as one of the
co-ordinate States of the Union, than that which seeks to establish
it on the basis of the idea of the family, as consisting in and
springing from the union for life of one man and one woman in the
holy estate of matrimony; the sure foundation of all that is stable
and noble in our civilization; the best guaranty of that reverent
morality which is the source of all beneficent progress in social
and political improvement." Id., at 45.
I would not myself indulge in such official praise for
heterosexual monogamy, because I think it no business of the courts
(as opposed to the political branches) to take sides in this
culture war.
But the Court today has done so, not only by inventing a novel
and extravagant constitutional doctrine to take the victory away
from traditional forces, but even by verbally disparaging as
bigotry adherence to traditional attitudes. To suggest, for
example, that this constitutional amendment springs from nothing
more than "'a bare ... desire to harm a politically unpopular
group,'"
ante, at 634, quoting
Department of
Agriculture v.
Moreno, 413 U. S. 528, 534
(1973), is nothing short of insulting. (It is also nothing short of
preposterous to call "politically unpopular" a group which enjoys
enormous influence in American media and politics, and which, as
the trial court here noted, though composing no more than 4% of the
population had the support of 46% of the voters on Amendment 2, see
App. to Pet. for Cert. C-18.)
When the Court takes sides in the culture wars, it tends to be
with the knights rather than the villeins-and more specifically
with the Templars, reflecting the views and values of the lawyer
class from which the Court's Members are drawn. How that class
feels about homosexuality will be evident to anyone who wishes to
interview job applicants at virtually any of the Nation's law
schools. The interviewer may refuse to offer a job because the
applicant is a Republican; because he is an adulterer; because he
went to the wrong
653
prep school or belongs to the wrong country club; because he
eats snails; because he is a womanizer; because she wears
real-animal fur; or even because he hates the Chicago Cubs. But if
the interviewer should wish not to be an associate or partner of an
applicant because he disapproves of the applicant's homosexuality,
then he will have violated the pledge which the Association
of American Law Schools requires all its member schools to exact
from job interviewers: "assurance of the employer's willingness" to
hire homosexuals. Bylaws of the Association of American Law
Schools, Inc. § 6-4(b); Executive Committee Regulations of the
Association of American Law Schools § 6.19, in 1995 Handbook,
Association of American Law Schools. This law-school view of what
"prejudices" must be stamped out may be contrasted with the more
plebeian attitudes that apparently still prevail in the United
States Congress, which has been unresponsive to repeated attempts
to extend to homosexuals the protections of federal civil rights
laws, see,
e. g., Employment NonDiscrimination Act of
1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments
of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which took
the pains to exclude them specifically from the Americans with
Disabilities Act of 1990, see 42 U. S. C. § 12211(a) (1988 ed.,
Supp. V).
***
Today's opinion has no foundation in American constitutional
law, and barely pretends to. The people of Colorado have adopted an
entirely reasonable provision which does not even disfavor
homosexuals in any substantive sense, but merely denies them
preferential treatment. Amendment 2 is designed to prevent
piecemeal deterioration of the sexual morality favored by a
majority of Coloradans, and is not only an appropriate means to
that legitimate end, but a means that Americans have employed
before. Striking it down is an act, not of judicial judgment, but
of political will. I dissent.
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