Today marks a milestone in American constitutional history.  On May 20, 1996, the United States Supreme Court unequivocally affirmed, for the first time, that gay and lesbian Americans cannot be treated as “unequal to everyone else.”

In that case, Romer v. Evans, the Court invalidated a provision of Colorado’s Constitution—known as Amendment 2—that prohibited the state from protecting gays and lesbians from discrimination.  “[T]he Constitution neither knows nor tolerates classes among citizens,” the Court declared.  Amendment 2 clearly violated that principle: it was “unprecedented in our jurisprudence,” “not within our constitutional tradition,” and was “born of animosity” toward gays and lesbians.  “[I]f the constitutional conception of ‘equal protection of the laws’ means anything,” the Court concluded, “it must as the very least mean that a bare…desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

As a civil rights landmark, Romer is a key precedent in Perry v. Brown, AFER’s federal constitutional challenge to California’s Proposition 8.  As the Ninth Circuit Court of Appeals said in its recent opinion affirming that Prop. 8 is unconstitutional (pp. 44-45):

Proposition 8 is remarkably similar to Amendment 2.  Like Amendment 2, Proposition 8 “single[s] out a certain class of citizens for disfavored legal status….”  Like Amendment 2, Proposition 8 has the “peculiar property,” of “withdraw[ing] from homosexuals, but no others,” an existing legal right—here, access to the official designation of ‘marriage’—that had been broadly available, notwithstanding the fact that the Constitution did not compel the state to confer it in the first place.  Like Amendment 2, Proposition 8 denies “equal protection of the laws in the most literal sense,” because it “carves out” an “exception” to California’s equal protection clause, by removing equal access to marriage, which gays and lesbians had previously enjoyed, from the scope of that constitutional guarantee.  Like Amendment 2, Proposition 8 “by state decree…put[s] [homosexuals] in a solitary class with respect to” an important aspect of human relations, and accordingly “imposes a special disability upon [homosexuals] alone.”  And like Amendment 2, Proposition 8 constitutionalizes that disability, meaning that gays and lesbians may overcome it “only by enlisting the citizenry of [the state] to amend the State Constitution” for a second time.  As we explain below, Romer compels that we affirm the judgment of the district court.