Gay Anti-Discrimination Cases
"If Bowers said it was constitutional to criminalize homosexual conduct," as the argument goes, "how can Evans, without even discussing Bowers, find unconstitutional the lesser step of simply prohibiting anti-discrimination provisions that protect homosexuals?" Though Romer held that animus was an impermissible justification for a Colorado law which denied homosexuals the right to have laws passed protecting them from discrimination, the statute at issue in this case, and Bowers v. Hardwick, is not based on animus against persons, but rather on a legitimate state interest in promoting sexual morality. As a result, Romer described the formation of a structural caste system created on the basis of sexual orientation which was deemed unconstitutional. In contrast, Bowers pertained to governing forms of behavior considered constitutional under "light" scrutiny. The foremost concern in Romer, Amendment 2 to Colorado's state constitution, would have established constitutional restraints that would disallow any municipality or other local government to pass "gay rights statutes." In Romer, the Court held on Equal Protection grounds that Amendment 2 discriminated against homosexuals merely on the basis of animus, which is an impermissib
In the end, thinking about how anti-discrimination laws work demonstrates that Bowers does not resolve Evans. Laws that prevent decision making on the basis of a person's sexual orientation apply to everyone, not just to those who engage in same-sex sexual activity. Among those most likely to be affected by these laws are people who are gender non-conformists, a group with only a very mild correspondence to those who engage in "homosexual sodomy." Moreover, given the importance of the kinds of transactions protected by anti-discrimination laws, Amendment 2 cannot fairly be characterized as a "lesser" burden necessarily pre-approved by Bowers. The state's ability to prohibit the choice of particular sexual practices does not implicitly sanction "exclusion from ordinary civic life in a free society" for those people who might be presumed to prefer those practices. It is true that the "animosity" language in the last few paragraphs of Romer is somewhat misleading, because the Georgia statute can be classified as based on animosity just as the Colorado amendment was. And Justice Scalia is right in pointing out that the amendment could conceivably be based on ideas about sexual morality, found to be a legitimate justification for the statute in Bowers. Scalia made use of what he referred to as the "greater-includes-the-lesser rationale," that because under Bowers states can criminalize same-sex sexual behavior, states obviously can take the lesser step of merely prohibiting anti-discrimination protections based on sexual orientation. After all, Bowers allows criminal sanctions, an extremely great intrusion by the state into people's lives. Ju
Some common words found in the essay are:
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Approximate Word count = 1114
Approximate Pages = 4 (250 words per page double spaced)
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