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social sciences

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Romer v. Evans  
page: 1  2  

Gay rights advocates rejoiced at the ruling, and rightly so, but at least initially Romer had limited impact beyond anti-gay initiatives. The case was first used against the military's "don't ask, don't tell" policy, but this failed miserably in the lower courts, and Romer did not change a thing for gay men and lesbians in the military (see, for example, Able v. United States [1996]).

Romer has been called a "great enigma" because the Court did not lay out any clear-cut test for analyzing claims of sexual orientation discrimination. Some thought the decision might be limited to its facts. Others, such as Nan D. Hunter, however, argued that Romer stood for much more, and at the very least it seriously undermined Bowers. The Court proved them right when it reversed Bowers and struck down all sodomy laws in Lawrence v. Texas (2003). The Court said the "foundations of Bowers have sustained serious erosion from our recent decisions in Casey [a right to privacy case on abortion] and Romer."

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The Massachusetts Supreme Judicial Court next relied on Romer in its historic same-sex marriage decision (Goodridge v. Dep't of Health [2003]). Quoting Romer, the court concluded, "Like Amendment 2 to the Constitution of Colorado, which effectively denied homosexual persons equality under the law and full access to the political process, the marriage restriction impermissibly 'identifies persons by a single trait and then denies them protection across the board.'"

The sentiment of Romer is clearly supportive of lesbian and gay civil rights, even if the test the Court used to reach its decision is somewhat ill defined. Courts have picked up on that sentiment and now use Romer to require equal treatment in realms far removed from the facts of the case.


What accounts for the Supreme Court's dramatic shift in attitude toward lesbians and gay men? Linda Greenhouse of the New York Times has suggested "it could be that webs of personal association and experience have led the justices to see old problems in new ways." The world around them has changed. She says the Court "has become a gay-friendly workplace where employees feel sufficiently comfortable in their open identity to bring their partners to court functions."

Some of the justices now meet frequently with judges in Europe and elsewhere, and these meetings have also influenced their view of gay civil rights. In particular, according to Greenhouse, "[e]xtensive foreign travel has made both Justice Kennedy and Justice O'Connor more alert to how their peers on other constitutional courts see similar issues." European courts have issued many positive gay rights rulings, and one of them was relied on by Justice Kennedy in Lawrence.

Greenhouse sees the Court's evolution as "a reminder that even in late middle age, people are open to new ideas." Yet she concedes, "not everyone responds to change in the same way." Referring to Lawrence and other cases, she observes: "It was as if [Justice Scalia] and Justice Kennedy, born within four months of each other 67 years ago, both Roman Catholic, both Harvard Law School graduates, both elevated to the court within 15 months by President Ronald Reagan, were speaking from parallel universes."

Indeed they are, and fortunately it is Justice Kennedy's position on lesbian and gay civil rights that currently holds sway at the Court. He deserves much of the credit for the Court's seismic shift on this issue, and it all began with Romer. Andrew M. Jacobs rightly calls the victory in Romer "the culmination of . . . twenty five years of gay rights advocacy, as well as a milepost on a longer journey."

Gregory A. Johnson

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Amar, Akhil Reed. "Attainder and Amendment 2: Romer's Rightness." Michigan Law Review 95 (1996): 203-35.

Greenhouse, Linda. "Evolving Opinions; Heartfelt Words from the Rehnquist Court." New York Times (July 6, 2003): Week in Review at 1.

Hunter, Nan D. "Proportional Equality: Readings of Romer." Kentucky Law Journal 89 (2001): 885-910.

Jacobs, Andrew M. "Romer Wasn't Built in a Day: The Subtle Transformation in Judicial Argument over Gay Rights." Wisconsin Law Review (1996): 893-969.

Murdoch, Joyce, and Deb Price. Courting Justice: Gay Men and Lesbians v. the Supreme Court. New York: Basic Books, 2001.

Williams, Walter L., and Yolanda Retter, eds. Gay and Lesbian Rights in the United States: A Documentary History. Westport, Conn.: Greenwood Press, 2003.


    Citation Information
    Author: Johnson, Gregory A.  
    Entry Title: Romer v. Evans  
    General Editor: Claude J. Summers  
    Publication Name: glbtq: An Encyclopedia of Gay, Lesbian, Bisexual,
Transgender, and Queer Culture
    Publication Date: 2004  
    Date Last Updated July 19, 2005  
    Web Address  
    Publisher glbtq, Inc.
1130 West Adams
Chicago, IL   60607
    Today's Date  
    Encyclopedia Copyright: © 2002-2006, glbtq, Inc.  
    Entry Copyright © 2004, glbtq, inc.  


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