Gay Anti-Discrimination Cases

"If Bowers said it was constitutional to criminalize homosexual conduct," as the argument goes, "how can Evans, without even discussing Bowers, find unconstitutional the lesser step of simply prohibiting anti-discrimination provisions that protect homosexuals?" Though Romer held that animus was an impermissible justification for a Colorado law which denied homosexuals the right to have laws passed protecting them from discrimination, the statute at issue in this case, and Bowers v. Hardwick, is not based on animus against persons, but rather on a legitimate state interest in promoting sexual morality. As a result, Romer described the formation of a structural caste system created on the basis of sexual orientation which was deemed unconstitutional. In contrast, Bowers pertained to governing forms of behavior considered constitutional under "light" scrutiny.

The foremost concern in Romer, Amendment 2 to Colorado’s state constitution, would have established constitutional restraints that would disallow any municipality or other local government to pass “gay rights statutes.” In Romer, the Court held on Equal Protection grounds that Amendment 2 discriminated against homosexuals merely on the basis of animus, which is an impermissib

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Among those most likely to be affected by these laws are people who are gender non-conformists, a group with only a very mild correspondence to those who engage in “homosexual sodomy. Scalia made use of what he referred to as the “greater-includes-the-lesser rationale,” that because under Bowers states can criminalize same-sex sexual behavior, states obviously can take the lesser step of merely prohibiting anti-discrimination protections based on sexual orientation. The Georgia statute, though, says “no protection for homosexual sex,” which is animosity only against an act. Laws that prevent decision making on the basis of a person's sexual orientation apply to everyone, not just to those who engage in same-sex sexual activity. ” To him, it obviously is a “lesser” burden than criminalizing sodomy.

It is true that the “animosity” language in the last few paragraphs of Romer is somewhat misleading, because the Georgia statute can be classified as based on animosity just as the Colorado amendment was. And Justice Scalia is right in pointing out that the amendment could conceivably be based on ideas about sexual morality, found to be a legitimate justification for the statute in Bowers. After all, Bowers allows criminal sanctions, an extremely great intrusion by the state into people's lives. The light justification of “sexual morality” was found acceptable by the Court. Rather, the Court’s opinion held that Amendment 2 was impermissible even under the “light” tests of rational relatedness to legitimate government purposes. The Bowers court stated that “No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated . But a fundamental fact at issue in Bowers has changed. ” At the end of the Romer opinion, the Court added 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 government purpose. We may set aside the questionable nature of this reasoning, and in fact leave it standing, because today, unlike 1985, there is a well-established connection between homosexual activity and the family.

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