Ten years after the U.S. Supreme Court struck down Colorado’s controversial Amendment 2, the case that signaled a dramatic change in the high court’s approach to gay rights still reverberates.
From the start of the challenge to the anti-gay-rights initiative that passed by a comfortable margin in 1992, the legal duel prompted wide-ranging discussion of homosexuality.
The argument raged all the way to Washington, where the decision in Romer vs. Evans became a legal landmark while also galvanizing forces on both sides of the debate. The measure would have blocked local governments from extending certain legal protections, such as the right to claim discrimination, on the basis of sexual orientation. Gay-rights advocates will mark Saturday’s anniversary with a gathering on on the steps of the state Capitol.
“I would say the case has had legs,” says Susan Low Bloch, who teaches constitutional law at Georgetown University.
Legal experts agree the decision marked a turnabout on the way the high court dealt with gay-rights issues. In 1986, the court had upheld a state’s right to enact anti-sodomy laws in the Georgia case Bowers vs. Hardwick.
A shift for court
But with the Romer decision a decade later, the court changed gears.
“The Romer case was significant because it signaled a shift from the hostile position of the Bowers case,” says Bloch. “It basically set the stage for later on getting rid of a case that had been highly controversial and setting the court on a path that is sensitive to gay rights.”
But the decision had broader impact as well, says Ken Upton, a Dallas-based senior staff attorney for Lambda Legal, which handles gay-rights cases.
“Romer made it clear you can’t write homophobia into your laws,” says Upton. “That has been an important move forward in equal-rights law that has made a significant difference.”
Amendment 2 supporters took some solace in what the Supreme Court did not do – namely, carve a niche in civil-rights law for gays as a protected class.
“Shocking … at the time”
But the basis of the majority’s decision in the 6-3 ruling rendered that irrelevant, says Steven Fitschen, president of the National Legal Foundation, the Virginia-based Christian organization that helped draft Colorado’s amendment.
“Justice (Anthony) Kennedy said there was no possible rational basis for this (amendment), so it had to be animus, which is a fancy legal word for hatred or bigotry,” he says. “It was a shocking idea at the time, but now it’s enshrined as precedent.”
The court’s May 20, 1996, decision also reframed the gay- rights argument for the years ahead.
“It set up the marriage debate – probably for both sides,” says Fitschen.
The result, he says, was the nationwide push for what have come to be known as defense-of-marriage amendments and a strategy of judicial impeachment that challenges “activist judges.”
Romer sees the irony
Even now, Roy Romer can barely digest the irony: The U.S. Supreme Court case that carries the former Colorado governor’s name put him in a position entirely at odds with his personal convictions.
“Every once in while we get in these roles in life, where you’ve got to do something that’s not personally in your belief system,” says Romer, now the outgoing superintendent of the Los Angeles public schools.
He vehemently opposed Amendment 2 and now finds it interesting that as many as four ballot issues on same-sex issues could find their way to the November ballot in Colorado.
“But then, what surprises me in life these days?” he says. “We ought to be spending time on how to form a community that works in a democracy, rather than defining fences.”
