Last month marked the 20th anniversary of Romer v. Evans, the landmark Supreme Court decision that laid the legal groundwork for some of our community's biggest victories including US v. Windsor and Obergefell v. Hodges. In Romer, the Supreme Court determined that a Colorado anti-gay voter referendum violated the Equal Protection Clause of the Constitution. Several Colorado municipalities had passed protections from discrimination on the basis of sexual orientation in the employment, housing, healthcare and other basic services. In response, in 1992 Colorado voters adopted Amendment 2 to the Colorado Constitution, which precluded these protections and any judicial, legislative or executive action designed to protect LGB people from discrimination. The Court ruled Amendment 2's blatant targeting of LGB people for discrimination to be a clear violation of the Equal Protection Clause of the Constitution.
In addition to strengthening the legal foundation for LGBTQ civil rights in the Constitution under the 14th amendment, Romer also sent a powerful message to lawmakers and courts that homophobia, or as the court described it a “bare… desire to harm a politically unpopular group,” can never be a legitimate state interest.
The precedent that Romer created is clear. Hate must not be used as the basis for lawmaking. It illustrates the critically powerful role of the Court as designed by our nation's founders to facilitate a genuine balance of powers within our democracy and to safeguard individuals from the so-called tyranny of the majority. As James Madison described in the 51st edition of the Federalist Papers, “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.”
Two decades after Romer, and over two centuries since the publication of the Federalist Papers these words remain frighteningly relevant. Today we can look back on what has been the most pro-equality administration in this nation's history. Under President Obama's leadership the federal government has implemented a myriad of federal protections in heatlhcare, employment, and housing. Many states and cities across the country now provide local protections as well. However, the anti-LGBTQ animus that fueled Amendment 2 in Colorado in 1996 continues to be a powerful force in American politics. As we have seen in North Carolina over the past months there are powerful forces transforming “bare animus” into state sanctioned bullying, particularly targeting transgender people.
The Constitution and Bill of Rights provide fundamental protections, and the Supreme Court was designed as the final arbiter and protectorate of these rights. The decision in Romer illustrates the system of checks and balances envisioned by our founders in action. It is sadly clear that there continues to be a pressing need for Constitutional safeguards to protect “politically unpopular” groups from the tyranny of the majority. However, these safeguards cannot work if one branch is held hostage by another. The future of the LGBTQ community and our quest for formal equality depends upon a fully functioning Supreme Court. Romer v. Evans created the infrastructure to end animus-based legislation, but we need nine Justices to truly build a future of equality.
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