Here's the Supreme Court's May 20, 1996, ruling that Colorado's controversial Amendment Two violates the equal protection clause of the Constitution.

SUPREME COURT OF THE UNITED STATES

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. 4-14.

(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 repealsed 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 from injuries
caused by discrimination in a wide range of public and private
transactions. Pp. 4-9.


(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. 9-14. 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.


______________________________________________________
__


NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D.C. 20543, of any
typographical or other formal errors, in order that corrections may be
made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES


No. 94-1039


ROY ROMER, GOVERNOR OF COLORADO, ET AL.,
PETITIONERS

v.

RICHARD G. EVANS ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
COLORADO

[May 20, 1996]

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.

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 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 Sections 28-91 to 28-116
(1991); Aspen Municipal Code Section 13-98 (1977); Boulder Rev.
Code Sections 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 Section 12-1-1 (defining "sexual orientation"
as "the choice of sexual partners, i.e., bisexual, homosexual or
heterosexual"); Denver Rev. Municipal Code, Art. IV Section 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, Section 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.

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 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. Evans v. Romer,
882 P. 2d 1335 (Colo. 1994) (Evans II). We granted certiorari and
now affirm the judgment, but on a rationale different from that
adopted by the State Supreme Court.


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 Section 13-98 (1977)
(prohibiting discrimination in employment, housing and public
accommodations on the basis of sexual orientation); Boulder, Colo.,
Rev. Code Sections 12-1-2 to -4 (1987) (same); Denver, Colo., Rev.
Mun. Code art. IV, Sections 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, Section 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 sexual orientation); and
various provisions prohibiting discrimination based on sexual
orientation at state colleges.26

"26Metropolitan 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 1284-1285, and n. 26.

Sweeping and comprehensive is the change in legal status effected by
this law. So much is evident from the ordinances that 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 that 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 anti-discrimination 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. ___, ___ (1995) (slip op., at 13).
The duty was a general one and did not specify protection for
particular groups. The common law rules, however, proved
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 Sections 20-13-10, 20-13-
22, 20-13-23 (1995); Iowa Code Sections 216.6-216.8 (1994);
Okla. Stat., Tit. 25, Sections 1302, 1402 (1987); 43 Pa. Cons. Stat.
Sections 953, 955 (Supp. 1995); N. J. Stat. Ann. Sections 10:5-3,
10:5-4 (West Supp. 1995); N. H. Rev. Stat. Ann. Section 354-A:7,
354-A:10, 354-A:17 (1995); Minn. Stat. Section 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 Section 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, Section 28-92.

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 not limited anti-discrimination 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. __, __ (1994) (slip op., at 8) (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 catalogue 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 Section 13-98(a)(1) (1977);
Boulder Rev. Code Sections 12-1-1 to 12-1-4 (1987); Denver Rev.
Municipal Code, Art. IV, Sections 28-92 to 28-119 (1991); Colo.
Rev. Stat. Sections 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 Sections 13-98(b), (c) (1977); Boulder Rev.
Code Sections 12-1-2, 12-1-3 (1987); Denver Rev. Municipal Code,
Art. IV Sections 28-93 to 28-95, Section 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 forbidden,
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
demonstrates 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. Section 24-4-106(7) (1988)
(agency action subject to judicial review under arbitrary and
capricious standard); Section 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); Section 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 Supreme Court made the limited observation that the
amendment is not intended to affect many anti-discrimination 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.


The Fourteenth Amendment's promise that no person shall be denied
the equal protection of the laws must co-exist 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. ___, ___ (1993) (slip op., at 6).


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 that 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
ascertain that there existed 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 United States
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 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 (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, and the judgment of the Supreme Court of
Colorado is affirmed.

It is so ordered.


______________________________________________________
__


SUPREME COURT OF THE UNITED STATES


No. 94-1039


ROY ROMER, GOVERNOR OF COLORADO, ET AL.,
PETITIONERS

v.

RICHARD G. EVANS ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
COLORADO

[May 20, 1996]

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 13, 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 13, is evil. I vigorously dissent.



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 4.
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 8. I agree that we need
not resolve that dispute, because the Supreme Court of Colorado has
resolved it for us. In Evans v. Romer, 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, Section 24-34-402(1)(a), 10A C. R. S.
(1994 Supp.); marital or family status, Section 24-34-502(1)(a), 10A
C. R. S. (1994 Supp.); veterans' status, Section 28-3-506, 11B C.
R. S. (1989); and for any legal, off-duty conduct such as smoking
tobacco, Section 24-34-402.5, 10A 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. Section 24-34-402.5 (Supp.
1995), which this passage authoritatively declares not to be affected
by Amendment 2, was respondents' primary 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 9. 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 accorded
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., 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.


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 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-lesser 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 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 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


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 Unamerican. 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 conceivable. 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, Section 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
"alternate 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 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., Jacobs, 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 New
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
Section 13-98 (1977); Boulder Rev. Municipal Code Sections 12-1-1
to 12-1-11 (1987); Denver Rev. Municipal Code, Art. IV Sections
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 agency-heads 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 are the rest of society. But they are
subject to being countered by lawful, democratic countermeasures as
well.

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 11-12.

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 group--whether 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 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, Section 4; N. M. Const., Art. XXI, Section
1; Okla. Const., Art. I, Section 2; Utah Const., Art. III, Section 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 local-option, 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; 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, Section 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 polygamy, 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 1, 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 14.3

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 Section 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?


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 10, and "confounds [the] normal
process of judicial review," ante, at 11, 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-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 13, 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
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. Section 6-
4(b); Executive Committee Regulations of the Association of
American Law Schools Section 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 Non-Discrimination 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. Section 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.


ENDNOTES

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 Evans v. Romer, 882 P. 2d 1335, 1341, n. 3 (1994).
And the Court implicitly rejects the Supreme Court of Colorado's
holding, see 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."  Ante, at 4.

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 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.

3 The Court labors mightily to get around Beason, see ante, at 12-13,
but cannot escape the central fact that this Court found the statute at
issue--which 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 "single[d] 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 12-13. 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 10. Finally, the Court's suggestion that
Section 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
6-9.