517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855, 1996 U.S. 3245.
-Voters in Colorado voters adopted Amendment two to their State Constitution, which precluded the government from adopting measures that would protect homosexuals from discrimination.
-A state trial court enjoined enforcement of the act.
-Court stated that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.
-Amendment two was added to the state constitution of Colorado by a statewide referendum.
-The amendment prohibited the state or local government from adopting measures that would protect homosexuals as a class from discrimination.
-The Respondents argued that Amendment two did nothing more than deny homosexuals special rights.
-The stated purpose of the amendment was said to prevent the deterioration of the sexual morality favored by most Colorado residents.
-The state trial court permanently enjoined enforcement Amendment two.
-The Colorado Supreme Court affirmed on the trials court’s decision.
Did Amendment two violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution?
-Court stated that Amendment two relegates homosexuals to a solitary class and withdraws from them, but not others, legal protections which arise from discrimination.
-The amendments reach includes the State’s public accommodation laws, as well as laws prohibiting discrimination in the markets for housing, insurance, and education.
-A law that makes it more difficult for one group of citizens to seek assistance from the government than another is a denial of the Equal Protection of the laws in the most literal sense (in other words, the means do not fit whatever ends sufficiently to pass rational basis review).
-Further, the means of Amendment two are so broad in relation to its ends (to prevent the deterioration of sexual morality) that they can not be credited.
-The U.S. Supreme Court is left with the conclusion that Amendment two constitutes a classification for its own sake. “Class legislation is obnoxious to the Fourteenth Amendment” (the ends are illegitimate).
-J. Scalia stated that the majority in this opinion is essentially saying that one who is accorded equal treatment under the laws, but cannot as readily achieve preferential treatment is one who is not accorded equal treatment and that this line of reasoning is silly.
-He also adds that discrimination of the basis of sexual orientation is subject to rational basis review. -Cites Bowers v. Hardwick (upholding the criminal law of a State prohibiting homosexual conduct) for this proposition and says that since Amendment 2 was designed to prevent the gradual decline of sexual morality favored by most Coloradans, Amendment 2 is an appropriate means to a legitimate ends and therefore constitutional.
-When this case was decided, Bowers v. Hardwick, which made homosexual conduct criminal, was still good law.
-Due to this, one would think that Bowers would be sufficient to establish the ends of Amendment two as rational.
-The Supreme Court has invalidated Amendment two under rational basis review, however.
-This case, (Romer), gives rise to the inference that the Supreme Court in fact applies a higher standard of review than the rational basis standard for cases involving discrimination based on sexual orientation.
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