Summary of a Rebuttal to Justice Scalia's dissent in Romer v. Evans, USSC #94-1039


On May 20, 1996, the United States Supreme Court struck down Colorado's controversial Amendment 2. Amendment 2 prohibited local or state government from enacting any legislation protecting homosexual or bisexual people from discrimination.

Justice Scalia wrote a 20 page dissent. It is important to be able to rebut his argument, so I wrote these pages.

Scalia claims that Amendment 2 is a reasonable and constitutional expression of the majority of Coloradans' condemnation of homo- and bisexuality. His reasoning is simple:

  1. Amendment 2 does not remove homo- and bisexual people's rights to seek equal protection on other grounds (race, age, et cetera).

  2. The 1986 case Bowers v. Hardwick established that a state can make [homosexual] sodomy illegal.

  3. It is not possible to separate homosexual orientation and homosexual conduct.

  4. There is legal precedent for denying equal protection to a class of people who are "prone" to engage in illegal conduct.

Paraphrased, homosexuals are people who are prone to commit an act which can be made criminal. Another class of people in this same situation has been denied equal protection. Hence denying equal protection to homosexuals is legal.

Rebuttal, Point by Point

Equal protection on other grounds

This is purely an attempt to give his dissent a spoonful of sugar to make it go down better. Of course Amendment 2 doesn't override existing grounds for seeking protection from discrimination. It would have been thrown out in the first court that heard the case.


Scalia's use of Bowers v. Hardwick is troubling at best and duplicitous at worst. Two fundamental errors are committed:

  1. Bowers is not about homosexual sodomy. It is about sodomy. A heterosexual couple brought a co-challenge at the same time as Michael Bowers, but their complaint was dismissed. A federal judge cited an earlier case that provided a right to privacy for married or "familial" relationships [1]. This is discriminatory.

  2. The reason this is discriminatory is that these laws were not created with homo- and bisexual people in mind. The thirteen original U.S. states had anti-sodomy laws, and I have seen no mention of the sexual orientation of the accused. They were meant to punish those acts which violated the morality of the time, and sodomy, regardless of gender or marital status, did. To argue that these laws were only meant to punish non-married or non-"familial" people is to selectively interpret the law to give favor to an approved class.

Aside from all this, let's not forget that (according to Scalia's dissent) Colorado was one of the first states to repeal its anti-sodomy law. So the argument is now: it is legal for Coloradans to deny equal protection to those who perform a wholly legal act.

Orientation = Conduct

The definition of the targeted class is based on four things:

  • sexual orientation
  • conduct
  • practices
  • relationships

Since these are blended in most everyone (again, regardless of gender), Scalia equates them. Hence those of homo- or bisexual orientation must have homo- or bisexual conduct, which can be criminalized. Thus it is valid to deny equal protection.

In a most twisted piece of logic, Scalia implies that Amendment 2 might be successfully challenged by "some individuals of homosexual 'orientation' who do not engage in homosexual acts". However, Scalia's equation of orientation with conduct allows him to rule out anyone who identifies him or herself as homo- or bisexual! Apparently the only person who could successfully mount a challenge is someone who would deny being homo- or bisexual if asked. Two kinds of people fit the bill: heterosexuals and closeted people.

Precedent for denying equal protection

The one (and only) case cited is Davis v. Beason, an 1890 case that challenged states' denial of the right to vote to those who practiced (or even advocated) plural marriage (polygamy, bigamy, group marriage). The Supreme Court held this to be constitutional - 106 years ago.

This is bad law. Scalia knows it. The majority opinion declares that part of it (denying the right to vote for advocates of plural marriage) is bad law, and the rest would not survive strict scrutiny. Scalia disagrees. For him, preventing the "piecemeal deterioration of ... sexual morality" is a rational basis for denial of equal protection.

However, proving a rational basis exists requires more than waving vague fears in the air. If Scalia had provided the court with a way of measuring sexual morality and then been able to prove that allowing equal protection for homo- and bisexual people decreased that level, then he might have an argument. Instead, the majority opinion labeled his and others' motives for what they are: animosity.

Summary of the summary

Scalia argues that states can deny equal protection to a class of people who have a tendency to perform an act which, though not illegal, can be made such. This is an overbroad argument, and the majority of the court saw through it to what it is: an attempt to repeal existing (and prevent the enactment of future) anti-discrimination laws for a class that is unpopular.

End Notes

1. Shouldn't long-term homo- and bisexual relationships be considered "familial"?

Last updated 2 June 2000
All contents ©1996-2002 Mark L. Irons