116 S.Ct. 1620 (1996), argued 10 Oct. 1995, decided 20 May 1996 by vote of 6 to 3; Kennedy for the Court, Scalia, Rehnquist, and Thomas in dissent. As more and more gay people came out of the closet in the 1980s and 1990s, the question of their constitutional status became at once more important and more conflicted. Unlike other groups, such as African-Americans, the Supreme Court had refused to treat gays as a specially protected “suspect” class under the Constitution. In Bowers v. Hardwick (1986), the justices had refused to overturn a Virginia law that criminalized homosexual sex. Homosexuals nonetheless enjoyed greater public visibility, yet that same visibility brought them into direct conflict with various Christian and family groups that condemned same-sex relations.
The contrast between traditional sexual practices and the gay lifestyle was particularly striking in Colorado, a state whose history as part of the Old West collided with the liberal enclaves of Boulder, Aspen, and Denver. These liberal municipalities passed ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities. In response to these measures, “family values” and fundamentalist religious groups successfully sponsored a statewide referendum—Amendment 2 to the Colorado Constitution—that precluded all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their sexual orientation and lifestyle. A coalition of gay action groups, liberal religious organizations, the American Civil Liberties Union, and the National Association for the Advancement of Colored People persuaded first a trial court and then the Colorado Supreme Court to enjoin Amendment 2 on the grounds that it violated the Equal Protection Clause of the Fourteenth Amendment. The state of Colorado, through the guise of its governor, Roy Romer, then appealed to the United States Supreme Court.
The state argued that Amendment 2 did not discriminate against gays but instead simply removed special rights for them that did not apply to other groups. Moreover, since the voters of Colorado had spoken on the issue, the high court was bound to respect the peoples’ judgment, especially since the measure followed the common practice of giving state governments broad authority over cities and municipalities. If there was a need for special protection of homosexuals, that protection should come from the state level.
Critics of Amendment 2 denounced it on constitutional grounds as an unacceptable act of discrimination that denied a specific category of people the protection of the laws. In short, counsel for Richard Evans, a gay activist and the coordinator of Denver's HIV resource program, argued that Colorado had failed to show any legitimate objective for this act of discrimination other than a majority of state residents disliked gay people.
Justice Anthony M. Kennedy's majority opinion supported the Colorado Supreme Court in striking down Amendment 2. Kennedy turned to two sources to make his argument. The first was Justice John Marshall Harlan, whose famous dissent in Plessy v. Ferguson (1896) held that “the Constitution neither knows nor tolerates classes among citizens” (p. 625). The Colorado amendment, Kennedy continued, had no rational or proper legislative purpose; instead, it was designed to “make them [gays] unequal to everyone else” (p. 646). Kennedy, however, avoided establishing homosexuals as a specially protected class, similar to that accorded blacks. He did so by relying on a brief filed by Harvard Law professor Lawrence Tribe, who had a decade before unsuccessfully argued the case of Bowers v. Hardwick. Tribe told the Court that it did not need to address the issue of special status for gays, since Amendment 2 was a rare example of a per se violation of the Equal Protection Clause of the Fourteenth Amendment. The fact that the other justices in the majority signed on to the opinion, rather than writing concurring opinions, underscored the effort by the majority to demonstrate a unified front over a contentious issue.