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Great Events from History: LGBTQ, 2nd Edition

Oregon and Colorado Attempt Antigay Initiatives

by Glenda M. Russell

Date: November 3, 1992

Also known as: Measure 9; Amendment 2; Romer v. Evans (1996)

Locale: Oregon; Colorado

Categories: Laws, acts, and legal history; government and politics

Key Figures

Jean Dubofsky attorney who argued against Amendment 2 before the U.S. Supreme Court

Richard G. Evans lead plaintiff in the Amendment 2 case

Roy Romer (b. 1928), governor of Colorado and defendant in the Amendment 2 case

Romer v. Evans (1996)

Justice Kennedy delivered the opinion of the Court: Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment reads:”No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.” . . . Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordinances that the Colorado Supreme Court declared would be void by operation of Amendment.

Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies. . . .

Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an

exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests. . . .

Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive;”[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” . . .

A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”[I]f the

constitutional conception of `equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” . . .

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.

It is so ordered.

Romer v. Evans (1996)

Dissenting opinion by Justice Scalia: The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a”`bare . . . desire to harm’” homosexuals, ante, at 13, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion’s heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court.

In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, . . . (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and

to the preferential laws against which the amendment was directed).

Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions.

This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that”animosity” toward

homosexuality . . . is evil. I vigorously dissent. . . .

Today’s opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor

homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.

Summary of Event

At the 1992 Republican National Convention, Christian Coalition founder Pat Robertson referred to a “cultural war” in the United States. Later that year, that cultural war was dramatically enacted in statewide campaigns about gay and lesbian rights in Oregon and Colorado. Conservative organizations in both states gathered signatures to place referenda on the November 3, 1992, statewide ballots.

The Oregon Citizens Alliance proposed ballot Measure 9, the more extreme of the two referenda, which grouped homosexuality with pedophilia, sadism, and masochism, declaring all to be “abnormal, wrong, unnatural, and perverse.” The measure required that governmental entities, including public schools, promote this view of homosexuality, especially to youth, and prohibited governmental efforts to “promote, encourage, or facilitate” homosexuality (or pedophilia, sadism, or masochism). Colorado for Family Values proposed Amendment 2, which prohibited any governmental body from adopting any ordinance offering claims of “any minority status, quota preferences, protected status or claim of discrimination” to gay, lesbian, or bisexual (LGB) Coloradans. Amendment 2 effectively nullified existing antidiscrimination ordinances in the state and prohibited the enactment of any such ordinances in the future.

The campaigns against gay rights in the two states drew on the same printed materials and a video, The Gay Agenda, all of which exploited long-standing stereotypes of LGB people and antipathy toward them. The campaigns divided each state, with the two sides engaging in vitriolic accusations. Antigay hate crimes were reported in both states, but the atmosphere grew especially heated in Oregon, where churches were desecrated, serious threats against LGB campaign workers were commonplace, and two people—a lesbian and a gay man—were killed when their house was torched by arsonists. Despite such tensions, LGB people from Oregon and Colorado came out in significant numbers and many heterosexual allies, including major public figures, took visible stands for LGB people and their rights.

The election results were split. Oregon voters rejected Measure 9, 56.5 to 43.5 percent; Colorado voters endorsed Amendment 2, 53 to 47 percent. In the aftermath of its loss in the 1992 election, the Oregon Citizens Alliance sponsored a variety of antigay referenda at the county level as well as subsequent statewide referenda. During the same period, LGB people in Oregon built an organization designed not only to fight such ballot measures but also to build a comprehensive pro-gay movement in the state.

Colorado’s LGB community was similarly galvanized after the passage of Amendment 2. The first order of business was to activate pre-election contingency plans for a judicial challenge to Amendment 2. The legal team, headed by Jean Dubofsky, initiated the case that ultimately became Romer v. Evans (1996). Colorado governor Roy Romer, who ironically had publicly opposed Amendment 2 prior to his election, chose to defend it against a postelection legal challenge. “Evans” was Richard G. Evans, one of seven individuals who, along with the cities of Boulder, Denver, and Aspen and the Boulder Valley School District, were plaintiffs in the case.

On January 15, 1993, Colorado district judge Jeffrey Bayless granted an injunction: Amendment 2 would not go into effect until the courts heard arguments and rendered a decision about its constitutionality. Later that year, the Colorado Supreme Court upheld the injunction and, after a full trial on the merits of the case, declared Amendment 2 unconstitutional on December 14, 1993.

The state of Colorado appealed the case to the U.S. Supreme Court, and arguments were heard in October of 1995. In a decision written by Justice Anthony Kennedy and handed down on May 20, 1996, the Court declared Amendment 2 unconstitutional. The ruling argued that the amendment violated the constitutional right to equal protection and lacked a rational basis for singling out LGB people. Justice Antonin Scalia penned a scathing dissent on behalf of himself and two other justices. Their dissent notwithstanding, Amendment 2 never took legal effect in Colorado.

Significance

The success of the campaign against Oregon’s Measure 9 suggests that antigay politics could be effectively countered. On the other hand, the passage of Colorado’s Amendment 2 demonstrated that some American voters were capable of expressing bias toward LGB people at the ballot box. This fact caused significant pain, fear, and anger in Colorado and in other states. Furthermore, the election demonstrated that appeals to “special rights” were especially effective and difficult to counter. The campaign and election also suggested the potential gains for conservatives in pursuing antigay measures, because they provided a means to raise money and galvanize voters. In retrospect, these measures were a harbinger of the subsequent practice of using LGB rights as political wedge issue.

Conservatives were inspired by Amendment 2 to propose similar antigay ordinances in a variety of locations; many petition drives never made it to the ballot box, but some did. However, these efforts were met with intensive and widespread organizing by LGB communities. These campaigns challenged many people in Colorado, in Oregon, and throughout the nation to come out and to take explicit public stands on behalf of LGB rights. Some LGB communities began to look more seriously at the internal divisions that hampered their efforts—divisions based on such factors as race, gender, the degree to which a person was out, and rural-urban differences. The awareness of the very real dangers posed by prejudice against LGB people prompted many heterosexuals to support LGB rights. Oregon and Colorado became models of what was possible—for better and for worse.

The Supreme Court decision declaring Amendment 2 unconstitutional also had significant legal impacts that went beyond the case in question. For the first time in history, the nation’s top judicial authority had acknowledged and delimited antigay prejudice. Also, the majority decision in the case represented a new way of speaking about LGB people, one that regarded them as citizens worthy of respect and civil rights. These two shifts laid a foundation for judicial rulings very different from tradition.

Citation Types

Type

Format

MLA 9th

Russell, Glenda M. "Oregon And Colorado Attempt Antigay Initiatives." Great Events from History: LGBTQ, 2nd Edition, edited by Robert C. Evans, Salem Press, 2017. Salem Online, online.salempress.com/articleDetails.do?articleName=LGBTQ2E_0232.

APA 7th

Russell, G. M. (2017). Oregon and Colorado Attempt Antigay Initiatives. In R. C. Evans (Ed.), Great Events from History: LGBTQ, 2nd Edition. Salem Press. online.salempress.com.

CMOS 17th

Russell, Glenda M. "Oregon And Colorado Attempt Antigay Initiatives." Edited by Robert C. Evans. Great Events from History: LGBTQ, 2nd Edition. Hackensack: Salem Press, 2017. Accessed September 15, 2025. online.salempress.com.

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