In this case, the Supreme Court struck down a Colorado state constitutional amendment, “Amendment 2,” adopted by statewide referendum, that prohibited all levels of state government from granting special protections to homosexuals. In a 6-3 decision by Justice Anthony Kennedy, the Court concluded that the amendment violates the Equal Protection Clause because it imposes a disability on homosexuals without a legitimate state interest. Homosexuals will be forbidden from the legal protections against discrimination to which others have access, and, according to the Court, they may only find protection from discrimination by enlisting their fellow citizens to amend the state constitution. The Court reasoned that the purpose of this Amendment “seems inexplicable by anything but animus toward the class it affects,” thus lacking a rational relationship to legitimate state interests. The State of Colorado had argued that it had an interest in respecting other citizens’ right of association, and in particular, the liberties of landlords or employers who have personal or religious objections to homosexuality.
This case is activist because judges relied on the so-called Living Constitution to make the Constitution comport with their self-described enlightened sensibilities. The majority opinion failed to even mention the precedent of Bowers v. Hardwick, the 1986 Supreme Court case that declared that it is permissible for states to make homosexual conduct a crime. Bowers was reversed seven years after Romer in the case of Lawrence v. Texas. The Equal Protection Clause of the Fourteenth Amendment was enacted to ensure that the states and their agents would secure the full and equal benefit of the laws for all persons without arbitrarily enforcing laws against individuals; it was not intended to grant certain individuals or groups special status that trumps the rights of others that are explicitly protection by our laws, such as the right of association.
The Court claims that the amendment lacked a rational relationship to a legitimate state interest, the lowest standard for a challenged state law to meet. The outcome therefore suggests an ideological thumb placed on the scale. The dissenting opinion by Justice Scalia artfully explains the majority’s mischaracterization of the government purpose of Amendment 2: “The Court has mistaken a Kulturkampf for a fit of spite.” Despite the Court’s accusations of “animus,” the state was preserving the ability of its citizens to debate a cultural issue while refraining from enforcing a certain position in the debate. In granting constitutional status to an issue on which the Constitution is silent, the Court seized the right of the American people to debate and decide this issue through the democratic process.