Changes

== Subject of Litigation ==

== Subject of Litigation ==

Colorado as a state became deeply divided on the issue of [[gay rights]] early in 2000.  [[Denver]] and [[Aspen]], the state's major cities, had passed robust laws banning discrimination on the basis of sexual orientation - that is, firing an employee for being gay was no longer a valid reason, etc.  In this, the two cities followed the lead of [[New York]] city, and many other metropolises.   

The [[homosexual]] movement became powerful in certain areas of Colorado, particularly among the elite in [[Denver]] and [[Aspen]].  These cities passed laws granting special privileges to homosexuals not enjoyed by heterosexuals, such as banning discrimination against homosexuals but not against heterosexuals.   

However, while these two cities were characterized by a large liberal majority, Colorado as a whole remained very conservative, and so narrowly passed "Amendment 2" to the Colorado Constitution, which would render null & void any city or state law prohibiting discrimination against homosexuals.  In essence, Amendment 2 wrote into the Colorado Constitution the ability to discriminate based on sexual orientation.

Colorado voters statewide opposed this favoritism, and enacted a referendum known as "Amendment 2" to the Colorado Constitution.  This nullified any city or state law granting special protections to homosexuals.   

Colorado foresaw a legal challenge to the amendment.  As such, they based the amendment on two "[[rational basis review| rational bases]]."  The first was the idea that the law ought not force employers, landlords, etc., to associate with those with whom they would rather not - the law can't mandate social acceptance, in other words.  The second was that Colorado would rather reserve its funds to protect against race & gender discrimination.   

The Amendment was based on the traditional legal doctrine that employers can fire at will, and that Colorado would devote scarce resources to eradicating race and gender discrimination.   

The amendment was immediately challenged as violative of the Equal Protection Clause, and quickly found its way to ''certiorari'' and a Supreme Court hearing on the merits.

[[Liberals]] quickly sued to persuade a judge to overturn what the people had just approved.  The [[liberal]] argument was that the amendment violated the Equal Protection Clause.  Though the [[U.S. Supreme Court]] declines to hear about 99% of the cases presented to it, it granted ''certiorari'' to hear this dispute.

== Holding of the Court ==

== Holding of the Court ==

On reviewing the offered "rational bases" for regulation, the Court rejected both, nominally applying [[rational basis review]].  Justice Sandra Day O'Connor wrote, for the court, that the first reason offered by the state - on the basis of class - necessarily fails, since as [[Alexis de Tocqueville]] wrote, and as [[Brown v. Board of Education]] made law, "there is no class here."  That is to say that any law that bases its existence on a desire to promote a class structure will immediately fail.  She continued to say that the preservation of administrative resources is also insufficient reason to regulate.

A narrow majority of the [[U.S. Supreme Court]] invalidated what the majority of Colorado voters approved.  Justice Sandra Day O'Connor wrote that the only reason for Amendment 2 was "animus laid bare," or a mere desire to stigmatize without any real benefit for its citizens, and a real detriment to the stigmatized group.  O'Connor wrote that this very idea was repugnant to the [[U.S. Constitution]].

 

Finding Colorado's offered rational bases without merit, O'Connor concluded that the only reason for Amendment 2 was "animus laid bare," or a mere desire to stigmatize without any real benefit for its citizens, and a real detriment to the stigmatized group.  O'Connor wrote that this very idea was repugnant to the Constitution.

== Fallout, and Interpreting ''Romer'' ==

== Fallout, and Interpreting ''Romer'' ==

The Court says that Amendment 2 fails [[rational basis review]].  But does it really?  Rational basis review allows almost any "state interest," legitimate or not, pretextual or not, to count as sufficient for legislative classification.  Thus, even an almost farcical motive for classification will generally pass muster (''Carolene Products'' says as much).  Under this light test, it is argued, Amendment 2 would pass, since even if the reasons were pretextual, rational basis would still not invalidate them.

The Court says that Amendment 2 fails [[rational basis review]].  But does it really?  Rational basis review allows almost any "state interest," legitimate or not, pretextual or not, to count as sufficient for legislative classification.  Thus, even an almost farcical motive for classification will generally pass muster (''Carolene Products'' says as much).  Under this light test, it is argued, Amendment 2 would pass, since even if the reasons were pretextual, rational basis would still not invalidate them.

As a result of this problem, commentators have suggested that ''Romer'' represents something more revolutionary than it appears, at first.  Perhaps ''Romer'' stands for the principle that, when classifying on the basis of sexual orientation, rational basis is not enough.  Rather, in addition to a rational basis, the reviewing Court must also ensure that the offered rationale is not pretextual to "animus laid bare."  This is a much more robust inquiry, dubbed "rational basis with teeth," that sounds like a midpoint between [[rational basis review]] and [[intermediate scrutiny]].  If it is, it may be a suggestion that the Court would be willing, in the future, to require classification on the basis of sexual orientation to pass [[strict scrutiny]].  The Court has before offered "midway" cases, after all, in the run-up to making a sweeping doctrinal change, as the case ''Reed v. Reed'' presaged the application of strict scrutiny to gender with a similarly vague form of "rational basis" review.

As a result of this problem, commentators have suggested that ''Romer'' represents something more revolutionary than it appears, at first.  Perhaps ''Romer'' stands for the principle that, when classifying on the basis of so-called sexual orientation, rational basis is not enough.  Rather, in addition to a rational basis, the reviewing Court must also ensure that the offered rationale is not pretextual to "animus laid bare."  This is a much more robust inquiry, dubbed "rational basis with teeth," that sounds like a midpoint between [[rational basis review]] and [[intermediate scrutiny]].  If it is, it may be a suggestion that the Court would be willing, in the future, to require classification on the basis of sexual preference or orientation to pass [[strict scrutiny]].  The Court has before offered "midway" cases, after all, in the run-up to making a sweeping doctrinal change, as the case ''Reed v. Reed'' presaged the application of strict scrutiny to gender with a similarly vague form of "rational basis" review.

Many have suggested that ''Romer'' makes little sense in a pre-''Lawrence'' world.  After all, so long as sodomy or other homosexual sex acts were illegal, could not the state find a "rational basis" to discriminate against homosexuals on the basis of their imputed engagement in felonious acts (sodomy)?  Indeed, this reason should pass the light review guaranteed by [[rational basis review]].  As such, after ''Lawrence'', when anti-sodomy statues were struck down, ''Romer'' makes much more sense, since the criminal stigma of homosexuality was wholly removed by ''Lawrence'', at least at law.

Many have suggested that ''Romer'' makes little sense in a pre-''Lawrence'' world.  After all, so long as sodomy or other homosexual sex acts were illegal, could not the state find a "rational basis" to discriminate against homosexuals on the basis of their imputed engagement in felonious acts (sodomy)?  Indeed, this reason should pass the light review guaranteed by [[rational basis review]].  As such, after ''Lawrence'', when anti-sodomy statues were struck down, ''Romer'' makes much more sense, since the criminal stigma of homosexuality was wholly removed by ''Lawrence'', at least at law.

== Dissent ==

== Dissent ==

Scalia wrote a dissent to the case, railing at length against the "[[homosexual agenda]]."  He also reminded the Court of its narrow role in resolving social conflicts, and took a narrow definition of the [[Fourteenth Amendment]] as protecting only against discrimination on the basis of race and gender.  Since sexual orientation was neither, he said, the legal inquiry was over, and the Federal constitution was silent.

Scalia wrote a dissent to the case, observing how the case really concerned the "[[homosexual agenda]]." Why is the [[U.S. Supreme Court]] picking sides in a political dispute? He reminded the Court of its narrow role in resolving social conflicts, and took a textual view of the [[Fourteenth Amendment]] as protecting only against discrimination on the basis of race and gender.  Since sexual "orientation" was neither, he said, the legal inquiry was over, and the [[U.S. Constitution]] was silent.