In June, the U.S. Supreme Court handed down its landmark opinion in Obergefell v. Hodges, a Supreme Court ruling that banned legal prohibitions of marriage based on the gender of the spouses. Millions of Americans greeted the opinion with celebration, millions of others with derision, and very few with ambivalence. Love it or hate it, most agree that Obergefell represents a significant development in the evolving status of gay Americans.
But this Supreme Court ruling does not stand alone. Obergefell is just the latest in a chain of major opinions—each written by Justice Anthony Kennedy—that stretches back almost two decades. Before Obergefell, there was U.S. v. Windsor striking down the federal Defense of Marriage Act in 2013. And before that, Lawrence v. Texas, a 2003 Supreme Court ruling that declared sodomy laws unconstitutional.
But the first Supreme Court ruling to recognize equal protection under the law for gay citizens is Romer v. Evans, decided May 20, 1996.
In 1992, Colorado voters enacted state constitutional Amendment 2, which banned local governments from enacting laws prohibiting discrimination based on “homosexual, lesbian or bisexual orientation.” A group of gay Coloradans, along with certain Colorado municipalities that had enacted LGBT civil rights ordinances, sued in state court to prevent enforcement of Amendment 2. The trial court found that Amendment 2 violated the equal protection guarantees of the Fourteenth Amendment to the federal constitution, and the state supreme court upheld the decision.
Discrimination and The Constitution
All laws discriminate. Criminal laws discriminate against persons who behave antisocially, traffic laws discriminate against motorists who drive unsafely, Veterans’ Day legislation discriminates in favor of former members of the military, and civil rights laws discriminate against people who impermissibly discriminate.
The Constitution does not prohibit discrimination. But it does require the government to exercise some restraint. In most instances, the state must simply be able to demonstrate a rational relationship between the discriminatory act, and some legitimate governmental interest. For example, a residential speed limit of 25 mph is rationally related to the city’s laudable interest in maintaining safe streets. But an ordinance that further limits the speed of purple cars to 10 mph would not likely survive constitutional scrutiny—unless, of course, the city’s lawyers were able to persuade the court that purple cars are particularly dangerous at higher speeds.
Certain types of governmental discrimination demand a higher level of scrutiny. If an official act either limits a fundamental right, or applies disproportionally to a suspect class* of people, then the reviewing court will subject the measure to strict scrutiny, the most stringent level of constitutional review.
To survive strict scrutiny, the act must:
- Serve a compelling governmental interest (national security, public safety, etc.);
- Be narrowly tailored to accomplish the interest (the discriminatory effect does not spill over into non-compelling state interests); and
- Represent the least restrictive means of achieving the interest (there is no other, less-discriminatory method to achieve the goal).
The Romer Analysis
The Colorado courts overturned Amendment 2 following a strict scrutiny analysis. While the Colorado Supreme Court specifically declined to define homosexuals as a suspect class, the state courts did find that Amendment 2 deprived gay Coloradans of a fundamental right, specifically, the right to petition the government for legislation tailored to protect their interests.
However, Justice Kennedy’s Supreme Court ruling expressly declined to follow the lower court analysis. Rather, he reasoned that because Amendment 2 so narrowly identified a targeted class to be subject to such a broad disability, the measure failed to survive even the lowest level of scrutiny, rational basis review.
Amendment 2 supporters argued that the measure furthered the state’s interest in protecting freedom of association (allowing landlords and employers to freely decide to not associate with homosexuals), and to preserve resources for the enforcement of other civil rights protections. But the breadth of Amendment 2 convinced the majority justices that its passage was propelled by nothing more than antagonism towards a particular group. Because simple animus can never be a legitimate governmental interest, there is no rational relationship to be found at all.
The Romer Supreme Court ruling marked the first time equal rights protections had been applied to gay Americans as a class of citizens. The intervening years have seen profound changes for the civil status of LGBT persons, both in the law, and in society as a whole. The shift has been uneven, and sometimes violent—two years after Romer, Matthew Shepard would be tortured and murdered in the neighboring state of Wyoming—but the trend is irrefutable.
First Romer, then Lawrence, then Windsor, then Obergefell. Each a Kennedy Supreme Court ruling, each further solidifying a new constitutional principle that civil parity in America shall not be dependent on a person’s sexuality.
*The term “suspect class” refers to groups identifiable by some trait—such as race or national origin—suggesting that they are more likely to be subject to impermissible discrimination. Measures that disproportionately impact such groups are suspect, not the people themselves.