Written by Connall MacLennan
In 1996, United States Supreme Court Justice Anthony Kennedy affirmed in his majority opinion that ‘a law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws’. This single sentence formed the core of the Supreme Court’s decision in the case of Romer v. Evans. For the gay rights activists and lawyers who had been fighting Colorado’s Amendment 2, these words represented the sweet taste of victory following a long, hard battle that had begun almost 25 years earlier. The mixture of success and failure which characterised this particular fight for LGB rights (although not the rights of the wider queer and trans community) shows just how tumultuous and divided post-Stonewall America was.
From 1971, gay activists in the United States had had some success in securing anti-discrimination ordinances in college towns, which tended to be more liberal, as well as in larger cities with sizeable gay populations. In Colorado, there had been a number of such successes, with Denver repealing anti-gay ordinances in 1973 and Boulder introducing an anti-discrimination ordinance in 1974. However, shortly after the ordinance was passed, Boulder residents voted in a referendum to repeal the law and the fight resumed.
To try and gain more influence in the political world and prevent such rollbacks, Colorado’s gay community realised that it would be necessary to first build an active community. With a solid community base, they could raise the funds necessary to have influence in the state legislature. Creating such networks has historically been difficult within the LGBTQ+ community as members essentially need to “out” themselves in order to be active within them and in doing so risk exposing themselves to discrimination and homophobia. Luckily, however, a small but determined group of Denver activists worked together to create a Unity Coalition which built “the Centre” in 1975, an LGBT centre that would be at the forefront of the fight for gay rights in Colorado. This new centre, run and funded by grassroots activists, began to lobby politicians and helped to introduce new anti-discrimination legislation across Colorado, such as in the tourist town of Aspen.
In 1987, Colorado’s gay community experienced one of its largest victories when the city of Boulder once again passed an anti-discrimination ordinance which successfully kept the attempted rollbacks at bay. This effort had been the work of a small group of lesbians and feminists with hardly any funding but had nevertheless proved successful. With this success seemingly acting as proof of a changed, more progressive Colorado, the Centre, led by lesbian feminist Tea Schook, began pushing for a similar ordinance to be reinstated in Denver, Colorado’s capital and largest city. In 1991, the city council adopted the ordinance and Denver’s gay community was protected from discrimination at last, with the attempted repeals failing as they had done in Boulder.
However, the gay community in Colorado, confident on the back of such a win, decided to take a risk that would prove disastrous. They went after Colorado Springs, the home of the powerful right-wing Christian organisation Focus on the Family. The attempted ordinances failed to pass. Angered by an attempt to liberalise their home turf, the Christian right decided to go state-wide in their opposition to the ordinance and others like it. The organisation Colorado for Family Values (CFV) was created and worked hard to hold a state-wide referendum to amend the state constitution to prohibit such ordinances from being enacted and to repeal any laws which protected the gay community. The backbone of CFV’s argument was that such ordinances gave gay people “special rights” and entitlements and therefore lowered the position of the good, white Christians within the community. This amendment, known as Amendment 2, passed by 53% and stripped Colorado’s LGB community from any protection under the law. The radical and energetic work of the Centre had all been for naught and the gay activists had been beaten by a hateful coalition of right-wing conservative religion: an all too familiar story.
Activism had failed and so the gay community turned to the courts. They needed lawyers, and Jean Dubofsky was their choice. Dubofsky had been the first woman on the Colorado Supreme Court and was renowned in the liberal circles of Colorado. Before long, offers of help from some of the most respected gay lawyers around the country came in and the Centre once again became the base for the effort. The lawyers would be arguing that the amendment violated the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. The question therefore was whether the Constitution was robust enough to truly protect all Americans, gays included. The lead plaintiff was Richard Evans, an aide to the mayor of Denver. His name was to be symbolically pitted against the governor, Roy Romer, who despite having opposed the Amendment, was defending it in court. Thus, the case of Romer v. Evans was brought to life.
When a radical fight for civil rights lands in the court system it can make or break the movement. During the civil rights era, the Black community had found success by using the Constitution as a way of gaining rights, in notable cases such as Brown v. Board of Education, which ended racial segregation in schools. After the success of the Black community, feminists tried their luck in court, also with a number of successes, including most notably Roe v. Wade, which legally ensures a woman’s right to an abortion. Such decisions by the US Supreme Court had been truly radical, and now it was the turn of one of America’s most alienated communities to try and find the favour of the Justices.
The starting point was the state courts. Fighting in court is of course drastically different to fighting in the political realm. While CFV had been able to paint gays as perverts and paedophiles who represented a risk to children and family values during the Amendment 2 campaign, in court such an argument would not hold. Dubofsky convinced the court of her arguments and in the opinion handed down by the Colorado Supreme Court in 1993, the argument that anti-discrimination ordinances gave ‘special rights’ to gay people was ripped apart and proven to be entirely illogical.
It was, however, to be a short-lived celebration. Dubofsky had hoped that the decision of the Colorado Supreme Court would be final, however, the US Supreme Court decided otherwise. The Supreme Court, which had been hostile to gay rights in the past, was going to review the case and hear arguments, meaning that the fight over Amendment 2 would be prolonged, with a high chance of the Colorado Court’s opinion being overturned. Only nine years prior the US Supreme Court had ruled in Bowers v. Hardwick that the state of Georgia had a constitutional right to imprison men for having sex with men. Now Dubofsky and her team had to convince them that these same men were entitled to equal protection under the law.
Thus, on 10 October 1995, the Supreme Court of the United States heard the oral arguments for Romer v. Evans. Again, the defendants of Amendment 2 laid out an argument that asserted that anti-discrimination ordinances gave gay people ‘special rights’. And again, Dubofsky argued that, as gay people were citizens of the United States, they were protected under its Constitution, including the Equal Protection Clause of the Fourteenth Amendment. To their amazement, on 20 May 1996, the Supreme Court issued its opinion in favour of Dubofsky and ruled that Colorado’s Amendment 2 was unconstitutional.
With this ruling in hand, gay Americans across the country could finally show that they had a right to be protected under the law, no matter what their communities thought of them. This unfathomable success was a result of radical grass-roots activism and years of legal challenges. It was a success brought about by both the high-placed lawyers and the grassroots activists based at the Centre. It had been supported by the underfunded feminists and lesbians who had fought in Boulder, as well as wealthy organisations like the American Civil Liberties Union (ACLU). It shows that, contrary to many of the narratives that are often propagated, lesbians–and indeed straight women–played an important role in the fight for gay rights.
The ruling did more than just repeal Amendment 2: it laid the groundwork for the future success of gay rights activism within the courts, with cases like Lawrence v. Texas (2003)and Obergefell v. Hodges (2015) relying heavily on the precedent set by the court’s decision. Unlike most successful court rulings in civil rights and feminist histories, Romer and other similar cases are often forgotten within gay history. However, this landmark ruling helped to liberate an entire community and has gone a long way in removing the prejudices that they have always faced.
Ballotpedia. “Colorado No Protected Status For Sexual Orientation Amendment, Initiative 2 (1992) – Ballotpedia.” 2014. Ballotpedia. https://ballotpedia.org/Colorado_No_Protected_Status_for_Sexual_Orientation_Amendment,_Initiative_2_(1992).
Hirshman, Linda R. 2012. Victory: The Triumphant Gay Revolution. Harper Perennial.
Ramirez, Richard. “Amendment 2.” Coloradoencyclopedia.Org. Last modified June 23, 2020. https://coloradoencyclopedia.org/article/amendment-2.
Urofsky, Melvin I.. “Romer V. Evans | Law Case.” Encyclopaedia Britannica. May 13, 2020. https://www.britannica.com/event/Romer-v-Evans.