Romer v. Evans at 20: We’ve Been Here Before

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May 20, 2016
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<p><em>This blog post was co-authored by <strong>Eric Lesh</strong>, Lambda Legal Fair Courts Project Director, and <strong>Richard Saenz</strong>,&nbsp;Staff Attorney and Criminal Justice and Police Misconduct Program Strategist.</em></p> <p><span style="line-height: 1.5em;">The American jury system is a symbol of our democracy. The right to jury trial is guaranteed by our Bill of Rights and embedded in every one of our state constitutions. In criminal cases, the Sixth Amendment guarantees the right to an
Romer v. Evans plaintiffs and legal team.

To quote late New York Yankee baseball great Yogi Berra, “it’s déjà vu all over again.”

Today marks the 20th anniversary of the groundbreaking U.S. Supreme Court ruling in Romer v. Evans, Lambda Legal’s successful challenge, in partnership with the ACLU and some of Colorado’s top lawyers, to Colorado’s Amendment 2.

The infamous Amendment 2 prohibited the state and its political subdivisions from providing lesbians, gay men and bisexuals any legal protection against discrimination on the basis of sexual orientation. It was a reaction to the efforts by several Colorado municipalities to enact anti-discrimination ordinances to protect their LGB residents.

If that sounds familiar, it should. This past March, North Carolina legislators adopted HB 2, which, like Colorado’s Amendment 2, prohibits North Carolina municipalities from adopting ordinances banning discrimination against LGBT residents. HB 2 goes a step further and compels those in North Carolina who are transgender to use only those sex-segregated facilities at public schools and in public buildings that match the sex listed on their birth certificate (something that cannot be changed in some states and is difficult to change in others).

HB 2, like Amendment 2, was a reaction to the effort by a municipality, in this case the City of Charlotte, to adopt an ordinance prohibiting discrimination against LGBT residents. Like Amendment 2, HB 2 is fatally grounded in animus—which includes not only ill will but also want of careful, rational reflection or an instinctive reaction to those perceived as different and who might at first feel unsettling to others.

North Carolina is but the latest state where conservative state legislators have moved to enshrine discrimination in reaction either to pro-LGBT judicial rulings or to the efforts by localities to adopt fair, reasonable and long-overdue anti-discrimination ordinances protecting their LGBT residents.

Such discriminatory measures date back to Amendment 2, through the federal so-called Defense of Marriage Act (DOMA) and the various discriminatory state marriage amendments to the present-day efforts of states like Tennessee, Arkansas and now North Carolina, among others, to preempt the inclusive and progressive efforts of cities and towns.

But, for as long as retrograde state legislators and officials have moved to keep us down, so too have we and our sister organizations fought back successfully in court to ensure this country lives up to its promise of fair and equal treatment for all.

It is a line we can trace back from Obergefell v. Hodges, last year’s historic Supreme Court ruling striking down state marriage bans, through Windsor v. the United States, the 2013 Court ruling that struck down a key provision of DOMA, to 2003’s Lawrence v. Texas, which invalidated all remaining state anti-sodomy laws, to, 20 years ago today, Romer v. Evans.

When decided, Romer v. Evans was the single most positive Supreme Court ruling in the history of the gay rights movement. The Court’s ruling made clear that lesbians, gay men and bisexuals have the same right to seek government protection against discrimination in the United States as any other group of people.

The decision also marked a new level of legal respect for LGBT people and rejected the notion that it is legitimate for the government to discriminate against gay people based on moral objections to homosexuality. It is a precedent whose influence can be traced through every momentous subsequent decision, and it informs our work today as we fight back against continuing efforts to enshrine discrimination. Indeed, faithful application of the controlling principles enunciated in Romer requires that the preemption provisions contained in North Carolina’s HB2 likewise be found unconstitutional.

Today, as we look at the challenges in front of us, we reflect on the 20 years of precedent at our back and take comfort. We’ve been here before, we handled it then, and we’re committed to continuing to protect LGBT people, now and in the future.