517 U.S. 620116 S.Ct. 1620134 L.Ed.2d 855
ROMER, GOVERNOR OF COLORADO, et al.v.EVANS et al.Certiorari to the Supreme Court of Colorado.
No. 94-1039.
Supreme Court of the United States


Syllabus
*

Argued October 10, 1995
Decided May 20, 1996
After various Colorado municipalities passed ordinances banning  discrimination based on sexual orientation in housing, employment,  education, public accommodations, health and welfare services, and other  transactions and activities, Colorado voters adopted by statewide  referendum "Amendment 2" to the State Constitution, which precludes all  legislative, executive, or judicial action at any level of state or  local government designed to protect the status of persons based on  their ``homosexual, lesbian or bisexual orientation, conduct, practices or relationships.''  Respondents, who include aggrieved homosexuals and  municipalities, commenced this litigation in state court against  petitioner state parties to declare Amendment 2 invalid and enjoin its  enforcement.  The trial court's grant of a preliminary injunction was  sustained by the Colorado Supreme Court, which held that Amendment 2 was  subject to strict scrutiny under the Equal Protection Clause of the  Fourteenth Amendment because it infringed the fundamental right of gays  and lesbians to participate in the political process.  On remand, the  trial court found that the Amendment failed to satisfy strict scrutiny. It enjoined Amendment 2's enforcement, and the State Supreme Court affirmed.
Held:  Amendment 2 violates the Equal Protection Clause.  Pp. 4-14.
(a) The State's principal argument that Amendment 2 puts gays and  lesbians in the same position as all other persons by denying them  special rights is rejected as implausible.  The extent of the change in  legal status effected by this law is evident from the authoritative  construction of Colorado's Supreme Court-which establishes that the  amendment's immediate effect is to repeal all existing statutes,  regulations, ordinances, and policies of state and local entities  barring discrimination based on sexual orientation, and that its  ultimate effect is to prohibit any governmental entity from adopting similar, or more protective, measures in the future absent state constitutional amendment-and from a review of the terms, structure, and  operation of the ordinances that would be repealsed and prohibited by  Amendment 2.  Even if, as the State contends, homosexuals can find  protection in laws and policies of general application, Amendment 2 goes  well beyond merely depriving them of special rights.  It imposes a broad  disability upon those persons alone, forbidding them, but no others, to  seek specific legal protection from injuries caused by discrimination in  a wide range of public and private transactions.  Pp. 4-9.
(b) In order to reconcile the Fourteenth Amendment's promise that no  person shall be denied equal protection with the practical reality that  most legislation classifies for one purpose or another, the Court has  stated that it will uphold a law that neither burdens a fundamental  right nor targets a suspect class so long as the legislative  classification bears a rational relation to some independent and  legitimate legislative end.  See, e.g., Heller v. Doe, 509 U. S. 312,  319-320. Amendment 2 fails, indeed defies, even this conventional  inquiry. First, the amendment is at once too narrow and too broad, identifying persons by a single trait and then denying them the possibility of protection across the board.  This disqualification of a  class of persons from the right to obtain specific protection from the  law is unprecedented and is itself a denial of equal protection in the  most literal sense.  Second, the sheer breadth of Amendment 2, which  makes a general announcement that gays and lesbians shall not have any  particular protections from the law, is so far removed from the reasons  offered for it, i.e., respect for other citizens' freedom of  association, particularly landlords or employers who have personal or  religious objections to homosexuality, and the State's interest in  conserving resources to fight discrimination against other groups, that  the amendment cannot be explained by reference to those reasons; the Amendment raises the inevitable inference that it is born of animosity  toward the class that it affects.  Amendment 2 cannot be said to be  directed to an identifiable legitimate purpose or discrete objective. It  is a status-based classification of persons undertaken for its own sake,  something the Equal Protection Clause does not permit.  Pp. 9-14.
882 P. 2d 1335, affirmed.
Kennedy, J., delivered the opinion of the Court, in which Stevens,  O'Connor, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed  a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined.
Justice Kennedy delivered the opinion of the Court.


1
One century ago, the first Justice Harlan admonished this Court  that the Constitution "neither knows nor tolerates classes among  citizens." Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting  opinion). Unheeded then, those words now are understood to state a  commitment to the law's neutrality where the rights of persons are at  stake.  The Equal Protection Clause enforces this principle and today  requires us to hold invalid a provision of Colorado's Constitution.


2
* The enactment challenged in this case is an amendment to the Constitution of the State of Colorado, adopted in a 1992 statewide referendum.  The parties and the state courts refer to it as "Amendment  2," its designation when submitted to the voters.  The impetus for the  amendment and the contentious campaign that preceded its adoption came  in large part from ordinances that had been passed in various Colorado  municipalities.  For example, the cities of Aspen and Boulder and the  City and County of Denver each had enacted ordinances which banned  discrimination in many transactions and activities, including housing,  employment, education, public accommodations, and health and welfare services. Denver Rev. Municipal Code, Art. IV Section(s) 28-91 to 28-116   (1991); Aspen Municipal Code Section(s) 13-98 (1977); Boulder Rev. Code  Section(s) 12-1-1 to 12-1-11 (1987).  What gave rise to the statewide  controversy was the protection the ordinances afforded to persons  discriminated against by reason of their sexual orientation.  See  Boulder Rev. Code Section(s) 12-1-1 (defining "sexual orientation" as  "the choice of sexual partners, i.e., bisexual, homosexual or  heterosexual"); Denver Rev. Municipal Code, Art. IV Section(s) 28-92   (defining "sexual orientation" as "[t]he status of an individual as to  his or her heterosexuality, homosexuality or bisexuality").  Amendment 2 repeals these ordinances to the extent they prohibit discrimination on  the basis of "homosexual, lesbian or bisexual orientation, conduct,  practices or relationships."  Colo. Const., Art. II, Section(s) 30b.


3
Yet 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:


4
"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."  Ibid.


5
Soon after Amendment 2 was adopted, this litigation to declare  its invalidity and enjoin its enforcement was commenced in the District  Court for the City and County of Denver.  Among the plaintiffs   (respondents here) were homosexual persons, some of them government  employees.  They alleged that enforcement of Amendment 2 would subject  them to immediate and substantial risk of discrimination on the basis of  their sexual orientation. Other plaintiffs (also respondents here)  included the three municipalities whose ordinances we have cited and  certain other governmental entities which had acted earlier to protect homosexuals from discrimination but would be prevented by Amendment 2  from continuing to do so.  Although Governor Romer had been on record  opposing the adoption of Amendment 2, he was named in his official  capacity as a defendant, together with the Colorado Attorney General and  the State of Colorado.


6
The trial court granted a preliminary injunction to stay enforcement of Amendment 2, and an appeal was taken to the Supreme Court  of Colorado.  Sustaining the interim injunction and remanding the case  for further proceedings, the State Supreme Court held that Amendment 2  was subject to strict scrutiny under the Fourteenth Amendment because it  infringed the fundamental right of gays and lesbians to participate in  the political process.  Evans v. Romer, 854 P. 2d 1270 (Colo. 1993)  (Evans I). To reach this conclusion, the state court relied on our  voting rights cases, e.g., Reynolds v. Sims, 377 U. S. 533 (1964); Carrington v. Rash, 380 U. S. 89 (1965); Harper v. Virginia Bd. of  Elections, 383 U. S. 663 (1966); Williams v. Rhodes, 393 U. S. 23   (1968), and on our precedents involving discriminatory restructuring of  governmental decisionmaking, see, e.g., Hunter v. Erickson, 393 U. S.  385 (1969); Reitman v. Mulkey, 387 U. S. 369 (1967); Washington v.  Seattle School Dist. No. 1, 458 U. S. 457 (1982); Gordon v. Lance, 403  U. S. 1 (1971).  On remand, the State advanced various arguments in an  effort to show that Amendment 2 was narrowly tailored to serve compelling interests, but the trial court found none sufficient. It  enjoined enforcement of Amendment 2, and the Supreme Court of Colorado,  in a second opinion, affirmed the ruling.  Evans v. Romer, 882 P. 2d  1335 (Colo. 1994) (Evans II).  We granted certiorari and now affirm the  judgment, but on a rationale different from that adopted by the State  Supreme Court.

II

7
The State's principal argument in defense of Amendment 2 is that  it puts gays and lesbians in the same position as all other persons.  So, the State says, the measure does no more than deny homosexuals  special rights.  This reading of the amendment's language is  implausible.  We rely not upon our own interpretation of the amendment  but upon the authoritative construction of Colorado's Supreme Court.  The state court, deeming it unnecessary to determine the full extent of  the amendment's reach, found it invalid even on a modest reading of its  implications.  The critical discussion of the amendment, set out in  Evans I, is as follows:


8
"The immediate objective of Amendment 2 is, at a      minimum, to  repeal existing statutes, regulations,      ordinances, and policies of state  and local entities that      barred discrimination based on sexual  orientation. See      Aspen, Colo., Mun. Code Section(s) 13-98 (1977)  (prohibiting      discrimination in employment, housing and public      accommodations on the basis of sexual orientation); Boulder,      Colo., Rev.  Code Section(s) 12-1-2 to -4 (1987) (same);      Denver, Colo., Rev. Mun.  Code art. IV, Section(s) 28-91 to      -116 (1991) (same); Executive Order  No. D0035 (December 10,      1990) (prohibiting employment discrimination for  `all state      employees, classified and exempt' on the basis of sexual      orientation); Colorado Insurance Code, Section(s) 10-3-1104,      4A C. R. S.  (1992 Supp.) (forbidding health insurance      providers from determining  insurability and premiums based      on an applicant's, a beneficiary's, or  an insured's sexual      orientation); and various provisions prohibiting      discrimination based on sexual orientation at state      colleges.26


9
"26 Metropolitan State College of Denver prohibits      college  sponsored social clubs from discriminating in      membership on the basis of  sexual orientation and Colorado      State University has an  antidiscrimination policy which      encompasses sexual orientation.


10
"The `ultimate effect' of Amendment 2 is to prohibit      any  governmental entity from adopting similar, or more      protective statutes,  regulations, ordinances, or policies in      the future unless the state  constitution is first amended to      permit such measures."  854 P. 2d, at  1284-1285, and n. 26.


11
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  2. 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.


12
The change that Amendment 2 works in the legal status of gays and lesbians in the private sphere is far-reaching, both on its own  terms and when considered in light of the structure and operation of  modern anti-discrimination laws.  That structure is well illustrated by  contemporary statutes and ordinances prohibiting discrimination by  providers of public accommodations. "At common law, innkeepers, smiths,  and others who `made profession of a public employment,' were prohibited  from refusing, without good reason, to serve a customer."  Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.  S. ___, ___ (1995) (slip op., at 13).  The duty was a general one and  did not specify protection for particular groups. The common law rules,  however, proved insufficient in many instances, and it was settled early  that the Fourteenth Amendment did not give Congress a general power to  prohibit discrimination in public accommodations, Civil Rights Cases,  109 U. S. 3, 25 (1883).  In consequence, most States have chosen to  counter discrimination by enacting detailed statutory schemes.  See, e.g., S. D. Codified Laws Section(s) 20-13-10, 20-13-22, 20-13-23   (1995); Iowa Code Section(s) 216.6-216.8 (1994); Okla. Stat., Tit. 25,  Section(s) 1302, 1402 (1987); 43 Pa. Cons. Stat. Section(s) 953, 955   (Supp. 1995); N. J. Stat. Ann. Section(s) 10:5-3, 10:5-4 (West Supp.  1995); N. H. Rev. Stat. Ann. Section(s) 354-A:7, 354-A:10, 354-A:17   (1995); Minn. Stat. Section(s) 363.03 (1991 and Supp. 1995).


13
Colorado's state and municipal laws typify this emerging tradition of statutory protection and follow a consistent pattern. The  laws first enumerate the persons or entities subject to a duty not to  discriminate. The list goes well beyond the entities covered by the  common law.  The Boulder ordinance, for example, has a comprehensive  definition of entities deemed places of "public accommodation."  They  include "any place of business engaged in any sales to the general  public and any place that offers services, facilities, privileges, or  advantages to the general public or that receives financial support  through solicitation of the general public or through governmental subsidy of any kind." Boulder Rev. Code Section(s) 12-1-1(j) (1987).  The Denver ordinance is of similar breadth, applying, for example, to  hotels, restaurants, hospitals, dental clinics, theaters, banks, common  carriers, travel and insurance agencies, and "shops and stores dealing  with goods or services of any kind," Denver Rev. Municipal Code, Art.  IV, Section(s) 28-92.


14
These statutes and ordinances also depart from the common law by  enumerating the groups or persons within their ambit of protection.  Enumeration is the essential device used to make the duty not to  discriminate concrete and to provide guidance for those who must comply.  In following this approach, Colorado's state and local governments have  not limited anti-discrimination laws to groups that have so far been  given the protection of heightened equal protection scrutiny under our  cases.  See, e.g., J. E. B. v. Alabama ex rel. T. B., 511 U. S. __, __   (1994) (slip op., at 8) (sex); Lalli v. Lalli, 439 U. S. 259, 265 (1978) (illegitimacy); McLaughlin v. Florida, 379 U. S. 184, 191-192 (1964)  (race); Oyama v. California, 332 U. S. 633 (1948) (ancestry).  Rather,  they set forth an extensive catalogue of traits which cannot be the  basis for discrimination, including age, military status, marital  status, pregnancy, parenthood, custody of a minor child, political  affiliation, physical or mental disability of an individual or of his or  her associates--and, in recent times, sexual orientation.  Aspen Municipal Code Section(s) 13-98(a)(1) (1977); Boulder Rev. Code Section(s) 12-1-1 to 12-1-4 (1987); Denver Rev. Municipal Code, Art. IV,  Section(s) 28-92 to 28-119 (1991); Colo. Rev. Stat. Section(s) 24-34-401  to 24-34-707 (1988 and Supp. 1995).


15
Amendment 2 bars homosexuals from securing protection against the injuries that these public-accommodations laws address.  That in  itself is a severe consequence, but there is more.  Amendment 2, in  addition, nullifies specific legal protections for this targeted class  in all transactions in housing, sale of real estate, insurance, health  and welfare services, private education, and employment.  See, e.g.,  Aspen Municipal Code Section(s) 13-98(b), (c) (1977); Boulder Rev. Code  Section(s) 12-1-2, 12-1-3 (1987); Denver Rev. Municipal Code, Art. IV Section(s) 28-93 to 28-95, Section(s) 28-97 (1991).


16
Not confined to the private sphere, Amendment 2 also operates to  repeal and forbid all laws or policies providing specific protection for  gays or lesbians from discrimination by every level of Colorado  government.  The State Supreme Court cited two examples of protections  in the governmental sphere that are now rescinded and may not be  reintroduced.  The first is Colorado Executive Order D0035 (1990), which  forbids employment discrimination against "`all state employees,  classified and exempt' on the basis of sexual orientation."  854 P. 2d,  at 1284. Also repealed, and now forbidden, are "various provisions prohibiting discrimination based on sexual orientation at state colleges."  Id., at 1284, 1285.  The repeal of these measures and the  prohibition against their future reenactment demonstrates that Amendment  2 has the same force and effect in Colorado's governmental sector as it  does elsewhere and that it applies to policies as well as ordinary  legislation.


17
Amendment 2's reach may not be limited to specific laws passed  for the benefit of gays and lesbians.  It is a fair, if not necessary,  inference from the broad language of the amendment that it deprives gays  and lesbians even of the protection of general laws and policies that  prohibit arbitrary discrimination in governmental and private settings.  See, e.g., Colo. Rev. Stat. Section(s) 24-4-106(7) (1988) (agency action  subject to judicial review under arbitrary and capricious standard);  Section(s) 18-8-405 (making it a criminal offense for a public servant knowingly, arbitrarily or capriciously to refrain from performing a duty  imposed on him by law); Section(s) 10-3-1104(1)(f) (prohibiting "unfair  discrimination" in insurance); 4 Colo. Code of Regulations 801-1, Policy  11-1 (1983) (prohibiting discrimination in state employment on grounds  of specified traits or "other non-merit factor").  At some point in the  systematic administration of these laws, an official must determine  whether homosexuality is an arbitrary and thus forbidden basis for decision. Yet a decision to that effect would itself amount to a policy  prohibiting discrimination on the basis of homosexuality, and so would  appear to be no more valid under Amendment 2 than the specific  prohibitions against discrimination the state court held invalid.


18
If this consequence follows from Amendment 2, as its broad language suggests, it would compound the constitutional difficulties the  law creates.  The state court did not decide whether the amendment has  this effect, however, and neither need we.  In the course of rejecting  the argument that Amendment 2 is intended to conserve resources to fight  discrimination against suspect classes, the Colorado Supreme Court made  the limited observation that the amendment is not intended to affect  many anti-discrimination laws protecting non-suspect classes, Romer II,  882 P. 2d at 1346, n. 9.  In our view that does not resolve the issue.  In any event, even if, as we doubt, homosexuals could find some safe  harbor in laws of general application, we cannot accept the view that  Amendment 2's prohibition on specific legal protections does no more  than deprive homosexuals of special rights.  To the contrary, the  amendment imposes a special disability upon those persons alone.  Homosexuals are forbidden the safeguards that others enjoy or may seek  without constraint. They can obtain specific protection against  discrimination only by enlisting the citizenry of Colorado to amend the  state constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability.  This is so no matter how local  or discrete the harm, no matter how public and widespread the injury. We  find nothing special in the protections Amendment 2 withholds.  These  are protections taken for granted by most people either because they  already have them or do not need them; these are protections against  exclusion from an almost limitless number of transactions and endeavors  that constitute ordinary civic life in a free society.

III

19
The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical  necessity that most legislation classifies for one purpose or another,  with resulting disadvantage to various groups or persons.  Personnel  Administrator of Mass. v. Feeney, 442 U. S. 256, 271- 272 (1979); F. S.  Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920).  We have  attempted to reconcile the principle with the reality by stating that,  if a law neither burdens a fundamental right nor targets a suspect  class, we will uphold the legislative classification so long as it bears  a rational relation to some legitimate end.  See, e.g., Heller v. Doe,  509 U. S. ___, ___ (1993) (slip op., at 6).


20
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.


21
Taking the first point, even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing  the relation between the classification adopted and the object to be  attained.  The search for the link between classification and objective  gives substance to the Equal Protection Clause; it provides guidance and  discipline for the legislature, which is entitled to know what sorts of  laws it can pass; and it marks the limits of our own authority.  In the ordinary case, a law will be sustained if it can be said to advance a  legitimate government interest, even if the law seems unwise or works to  the disadvantage of a particular group, or if the rationale for it seems  tenuous.  See New Orleans v. Dukes, 427 U. S. 297 (1976) (tourism  benefits justified classification favoring pushcart vendors of certain  longevity); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483   (1955) (assumed health concerns justified law favoring optometrists over opticians); Railway Express Agency, Inc. v. New York, 336 U. S. 106   (1949) (potential traffic hazards justified exemption of vehicles  advertising the owner's products from general advertising ban); Kotch v.  Board of River Port Pilot Comm'rs for Port of New Orleans, 330 U. S. 552   (1947) (licensing scheme that disfavored persons unrelated to current  river boat pilots justified by possible efficiency and safety benefits  of a closely knit pilotage system).  The laws challenged in the cases  just cited were narrow enough in scope and grounded in a sufficient factual context for us to ascertain that there existed some relation  between the classification and the purpose it served. By requiring that  the classification bear a rational relationship to an independent and  legitimate legislative end, we ensure that classifications are not drawn  for the purpose of disadvantaging the group burdened by the law.  See  United States Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 181   (1980) (Stevens, J., concurring) ("If the adverse impact on the  disfavored class is an apparent aim of the legislature, its impartiality  would be suspect.").


22
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." Louisville Gas & Elec. Co. v. Coleman, 277  U. S. 32, 37-38 (1928).


23
It is not within our constitutional tradition to enact laws of  this sort.  Central both to the idea of the rule of law and to our own  Constitution's guarantee of equal protection is the principle that  government and each of its parts remain open on impartial terms to all  who seek its assistance.  "`Equal protection of the laws is not achieved  through indiscriminate imposition of inequalities.'"  Sweatt v. Painter,  339 U. S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334 U. S. 1, 22   (1948)). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare.  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 in the  most literal sense.  "The guaranty of `equal protection of the laws is a  pledge of the protection of equallaws.'"  Skinner v. Oklahoma ex rel.  Williamson, 316 U. S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118  U. S. 356, 369 (1886)).


24
Davis v. Beason, 133 U. S. 333 (1890), not cited by the parties  but relied upon by the dissent, is not evidence that Amendment 2 is  within our constitutional tradition, and any reliance upon it as  authority for sustaining the amendment is misplaced.  In Davis, the  Court approved an Idaho territorial statute denying Mormons,  polygamists, and advocates of polygamy the right to vote and to hold  office because, as the Court construed the statute, it "simply excludes  from the privilege of voting, or of holding any office of honor, trust  or profit, those who have been convicted of certain offences, and those  who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes forbidden by it." Id., at  347.  To the extent Davis held that persons advocating a certain  practice may be denied the right to vote, it is no longer good law.  Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). To the extent  it held that the groups designated in the statute may be deprived of the  right to vote because of their status, its ruling could not stand  without surviving strict scrutiny, a most doubtful outcome.  Dunn v.  Blumstein, 405 U. S. 330, 337 (1972); cf. United States v. Brown, 381 U.  S. 437 (1965); United States v. Robel, 389 U. S. 258 (1967).  To the  extent Davis held that a convicted felon may be denied the right to  vote, its holding is not implicated by our decision and is  unexceptionable.  See Richardson v. Ramirez, 418 U. S. 24 (1974).


25
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."  Department of Agriculture v. Moreno, 413 U. S.  528, 534 (1973).  Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which  justify the incidental disadvantages they impose on certain persons.  Amendment 2, however, in making a general announcement that gays and  lesbians shall not have any particular protections from the law,  inflicts on them immediate, continuing, and real injuries that outrun  and belie any legitimate justifications that may be claimed for it.  We  conclude that, in addition to the far-reaching deficiencies of Amendment  2 that we have noted, the principles it offends, in another sense, are  conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, Kadrmas v. Dickinson Public Schools,  487 U. S. 450, 462 (1988), and Amendment 2 does not.


26
The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular  the liberties of landlords or employers who have personal or religious  objections to homosexuality.  Colorado also cites its interest in  conserving resources to fight discrimination against other groups.  The  breadth of the Amendment is so far removed from these particular  justifications that we find it impossible to credit them.  We cannot say  that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any  factual context from which we could discern a relationship to legitimate  state interests; it is a classification of persons undertaken for its  own sake, something the Equal Protection Clause does not permit.  "[C]lass legislation . . . [is] obnoxious to the prohibitions of the  Fourteenth Amendment . . . ." Civil Rights Cases, 109 U. S., at 24.


27
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.


28

It is so ordered.



29
djq  Justice Scalia, with whom The Chief Justice and Justice Thomas  join, dissenting.


30
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.


31
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, 478 U. S.  186 (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, ante, at  13, is evil. I vigorously dissent.


32
* Let me first discuss Part II of the Court's opinion, its longest  section, which is devoted to rejecting the State's arguments that  Amendment 2 "puts gays and lesbians in the same position as all other  persons," and "does no more than deny homosexuals special rights," ante,  at 4.  The Court concludes that this reading of Amendment 2's language  is "implausible" under the "authoritative construction" given Amendment  2 by the Supreme Court of Colorado.  Ibid.


33
In reaching this conclusion, the Court considers it unnecessary  to decide the validity of the State's argument that Amendment 2 does not  deprive homosexuals of the "protection [afforded by] general laws and  policies that prohibit arbitrary discrimination in governmental and  private settings."  Ante, at 8.  I agree that we need not resolve that  dispute, because the Supreme Court of Colorado has resolved it for us.  In Evans v. Romer, 882 P. 2d 1335 (1994), the Colorado court stated:


34
"[I]t is significant to note that Colorado law currently      proscribes discrimination against persons who are not suspect      classes,  including discrimination based on age, Section(s)      24-34-402(1)(a), 10A  C.  R.  S. (1994 Supp.); marital or      family status, Section(s)  24-34-502(1)(a), 10A C. R. S.      (1994 Supp.); veterans' status, Section(s)  28-3-506, 11B C.      R.  S. (1989); and for any legal, off-duty conduct  such as      smoking tobacco, Section(s) 24-34-402.5, 10A C. R.  S. (1994      Supp.).  Of course Amendment 2 is not intended to have any      effect on  this legislation, but seeks only to prevent the      adoption of  anti-discrimination laws intended to protect      gays, lesbians, and  bisexuals."  Id., at 1346, n.  9      (emphasis added).


35
The Court utterly fails to distinguish this portion ofthe Colorado court's opinion.  Colorado Rev. Stat. Section(s) 24-34-402.5   (Supp. 1995), which this passage authoritatively declares not to be  affected by Amendment 2, was respondents' primary example of a generally  applicable law whose protections would be unavailable to homosexuals  under Amendment 2.  See Brief for Respondents Evans et al. 11-12.  The  clear import of the Colorado court's conclusion that it is not affected  is that "general laws and policies that prohibit arbitrary discrimination" would continue to prohibit discrimination on the basis  of homosexual conduct as well. This analysis, which is fully in accord  with (indeed, follows inescapably from) the text of the constitutional  provision, lays to rest such horribles, raised in the course of oral  argument, as the prospect that assaults upon homosexuals could not be  prosecuted.  The amendment prohibits special treatment of homosexuals,  and nothing more.  It would not affect, for example, a requirement of  state law that pensions be paid to all retiring state employees with a  certain length of service; homosexual employees, as well as others,  would be entitled to that benefit.  But it would prevent the State or any municipality from making death-benefit payments to the "life partner" of a homosexual when it does not make such payments to the  long-time roommate of a nonhomosexual employee.  Or again, it does not  affect the requirement of the State's general insurance laws that  customers be afforded coverage without discrimination unrelated to  anticipated risk.  Thus, homosexuals could not be denied coverage, or  charged a greater premium, with respect to auto collision insurance; but  neither the State nor any municipality could require that distinctive  health insurance risks associated with homosexuality (if there are any)  be ignored.


36
Despite all of its hand-wringing about the potential effect of  Amendment 2 on general antidiscrimination laws, the Court's opinion  ultimately does not dispute all this, but assumes it to be true.  See  ante, at 9.  The only denial of equal treatment it contends homosexuals  have suffered is this: They may not obtain preferential treatment  without amending the state constitution. That is to say, the principle  underlying the Court's opinion is that one who is accorded equal  treatment under the laws, but cannot as readily as others obtain  preferential treatment under the laws, has been denied equal protection  of the laws.  If merely stating this alleged "equal protection"  violation does not suffice to refute it, our constitutional  jurisprudence has achieved terminal silliness.


37
The central thesis of the Court's reasoning is that any group is  denied equal protection when, to obtain advantage (or, presumably, to  avoid disadvantage), it must have recourse to a more general and hence  more difficult level of political decisionmaking than others.  The world  has never heard of such a principle, which is why the Court's opinion is  so long on emotive utterance and so short on relevant legal citation.  And it seems to me most unlikely that any multilevel democracy can  function under such a principle.  For whenever a disadvantage is  imposed, or conferral of a benefit is prohibited, at one of the higher levels of democratic decisionmaking (i.e., by the state legislature  rather than local government, or by the people at large in the state  constitution rather than the legislature), the affected group has (under  this theory) been denied equal protection.  To take the simplest of  examples, consider a state law prohibiting the award of municipal  contracts to relatives of mayors or city councilmen.  Once such a law is  passed, the group composed of such relatives must, in order to get the  benefit of city contracts, persuade the state legislature-unlike all  other citizens, who need only persuade the municipality.  It is ridiculous to consider this a denial of equal protection, which is why  the Court's theory is unheard-of.


38
The Court might reply that the example I have given is not a denial of equal protection only because the same "rational basis" (avoidance of corruption) which renders constitutional the substantive  discrimination against relatives (i.e., the fact that they alone cannot  obtain city contracts) also automatically suffices to sustain what might  be called the electoral-procedural discrimination against them (i.e.,  the fact that they must go to the state level to get this changed).  This is of course a perfectly reasonable response, and would explain why "electoral-procedural discrimination" has not hitherto been heard of: a  law that is valid in its substance is automatically valid in its level  of enactment.  But the Court cannot afford to make this argument, for as  I shall discuss next, there is no doubt of a rational basis for the  substance of the prohibition at issue here.  The Court's entire novel  theory rests upon the proposition that there is something  special-something that cannot be justified by normal "rational basis"  analysis-in making a disadvantaged group (or a nonpreferred group)  resort to a higher decisionmaking level.  That proposition finds no  support in law or logic.

II

39
I turn next to whether there was a legitimate rational basis for  the substance of the constitutional amendment-for the prohibition of  special protection for homosexuals.1  It is unsurprising that the  Court avoids discussion of this question, since the answer is so  obviously yes.  The case most relevant to the issue before us today is  not even mentioned in the Court's opinion: In Bowers v. Hardwick, 478 U.  S. 186 (1986), we held that the Constitution does not prohibit what  virtually all States had done from the founding of the Republic until  very recent years-making homosexual conduct a crime.  That holding is unassailable, except by those who think that the Constitution changes to  suit current fashions.  But in any event it is a given in the present  case: Respondents' briefs did not urge overruling Bowers, and at oral  argument respondents' counsel expressly disavowed any intent to seek  such overruling, Tr. of Oral Arg. 53.  If it is constitutionally  permissible for a State to make homosexual conduct criminal, surely it  is constitutionally permissible for a State to enact other laws merely  disfavoring homosexual conduct.  (As the Court of Appeals for the  District of Columbia Circuit has aptly put it: "If the Court [in Bowers]  was unwilling to object to state laws that criminalize the behavior that  defines the class, it is hardly open . . . to conclude that state  sponsored discrimination against the class is invidious. After all,  there can hardly be more palpable discrimination against a class than  making the conduct that defines the class criminal."  Padula v. Webster,  822 F. 2d 97, 103 (1987).)  And a fortiori it is constitutionally  permissible for a State to adopt a provision not even disfavoring  homosexual conduct, but merely prohibiting all levels of state  government from bestowing special protections upon homosexual conduct.  Respondents (who, unlike the Court, cannot afford the luxury of ignoring  inconvenient precedent) counter Bowers with the argument that a greater-includes-the-lesser rationale cannot justify Amendment 2's application to individuals who do not engage in homosexual acts, but are  merely of homosexual "orientation."  Some courts of appeals have  concluded that, with respect to laws of this sort at least, that is a  distinction without a difference.  See Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54 F. 3d 261, 267 (CA6 1995) ("[F]or  purposes of these proceedings, it is virtually impossible to distinguish  or separate individuals of a particular orientation which predisposes  them toward a particular sexual conduct from those who actually engage  in that particular type of sexual conduct"); Steffan v. Perry, 41 F. 3d  677, 689-690 (CADC 1994).  The Supreme Court of Colorado itself appears  to be of this view.  See 882 P. 2d, at 1349-1350 ("Amendment 2 targets this class of persons based on four characteristics: sexual orientation;  conduct; practices; and relationships.  Each characteristic provides a  potentially different way of identifying that class of persons who are  gay, lesbian, or bisexual.  These four characteristics are not truly  severable from one another because each provides nothing more than a different way of identifying the same class of persons") (emphasis added).


40
But assuming that, in Amendment 2, a person of homosexual "orientation" is someone who does not engage in homosexual conduct but  merely has a tendency or desire to do so, Bowers still suffices to  establish a rational basis for the provision.  If it is rational to  criminalize the conduct, surely it is rational to deny special favor and  protection to those with a self-avowed tendency or desire to engage in  the conduct.  Indeed, where criminal sanctions are not involved,  homosexual "orientation" is an acceptable stand-in for homosexual  conduct.  A State "does not violate the Equal Protection Clause merely  because the classifications made by its laws are imperfect," Dandridge  v. Williams, 397 U. S. 471, 485 (1970).  Just as a policy barring the  hiring of methadone users as transit employees does not violate equal  protection simply because some methadone users pose no threat to  passenger safety, see New York City Transit Authority v. Beazer, 440 U.  S. 568 (1979), and just as a mandatory retirement age of 50 for police  officers does not violate equal protection even though it prematurely  ends the careers of many policemen over 50 who still have the capacity  to do the job, see Massachusetts Bd. of Retirement v. Murgia, 427 U. S.  307 (1976) (per curiam), Amendment 2 is not constitutionally invalid  simply because it could have been drawn more precisely so as to withdraw  special antidiscrimination protections only from those of homosexual  "orientation" who actually engage in homosexual conduct.  As Justice  Kennedy wrote, when he was on the Court of Appeals, in a case involving  discharge of homosexuals from the Navy: "Nearly any statute which  classifies people may be irrational as applied in particular cases.  Discharge of the particular plaintiffs before us would be rational,  under minimal scrutiny, not because their particular cases present the  dangers which justify Navy policy, but instead because the general  policy of discharging all homosexuals is rational."  Beller v.  Middendorf, 632 F. 2d 788, 808-809, n. 20 (CA9 1980) (citation omitted).  See also Ben-Shalom v. Marsh, 881 F. 2d 454, 464 (CA7 1989), cert.  denied, 494 U. S. 1004 (1990).


41
Moreover, even if the provision regarding homosexual "orientation" were invalid, respondents' challenge to Amendment 2-which  is a facial challenge-must fail.  "A facial challenge to a legislative  Act is, of course, the most difficult challenge to mount successfully,  since the challenger must establish that no set of circumstances exists  under which the Act would be valid." United States v. Salerno, 481 U.  S. 739, 745 (1987).  It would not be enough for respondents to establish   (if they could) that Amendment 2 is unconstitutional as applied to those  of homosexual "orientation"; since, under Bowers, Amendment 2 is  unquestionably constitutional as applied to those who engage in  homosexual conduct, the facial challenge cannot succeed.  Some  individuals of homosexual "orientation" who do not engage in homosexual  acts might successfully bring an as-applied challenge to Amendment 2, but so far as the record indicates, none of the respondents is such a  person.  See App. 4-5 (complaint describing each of the individual  respondents as either "a gay man" or "a lesbian").2

III

42
The foregoing suffices to establish what the Court's failure to  cite any case remotely in point would lead one to suspect: No principle  set forth in the Constitution, nor even any imagined by this Court in  the past 200 years, prohibits what Colorado has done here.  But the case  for Colorado is much stronger than that. What it has done is not only  unprohibited, but eminently reasonable, with close, congressionally  approved precedent in earlier constitutional practice.


43
First, as to its eminent reasonableness.  The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of  "animus" or "animosity" toward homosexuality, as though that has been  established as Unamerican.  Of course it is our moral heritage that one  should not hate any human being or class of human beings.  But I had  thought that one could consider certain conduct reprehensible-murder,  for example, or polygamy, or cruelty to animals-and could exhibit even  "animus" toward such conduct.  Surely that is the only sort of "animus"  at issue here: moral disapproval of homosexual conduct, the same sort of  moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.  The Colorado amendment does not, to  speak entirely precisely, prohibit giving favored status to people who  are homosexuals; they can be favored for many reasons-for example,  because they are senior citizens or members of racial minorities.  But  it prohibits giving them favored status because of their homosexual conduct-that is, it prohibits favored status for homosexuality.


44
But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility  reflected by Amendment 2 is the smallest conceivable. The Court's  portrayal of Coloradans as a society fallen victim to pointless,  hate-filled "gay-bashing" is so false as to be comical.  Colorado not  only is one of the 25 States that have repealed their antisodomy laws,  but was among the first to do so. See 1971 Colo. Sess. Laws, ch. 121,  Section(s) 1.  But the society that eliminates criminal punishment for  homosexual acts does not necessarily abandon the view that homosexuality  is morally wrong and socially harmful; often, abolition simply reflects  the view that enforcement of such criminal laws involves unseemly  intrusion into the intimate lives of citizens.  Cf. Brief for Lambda  Legal Defense and Education Fund, Inc., et al. as Amici Curiae in Bowers  v. Hardwick, O. T. 1985, No. 85-140, p. 25, n.  21 (antisodomy statutes  are "unenforceable by any but the most offensive snooping and wasteful  allocation of law enforcement resources"); Kadish, The Crisis of Overcriminalization, 374 The Annals of the American Academy of Political  and Social Science 157, 161 (1967) ("To obtain evidence [in sodomy  cases], police are obliged to resort to behavior which tends to degrade  and demean both themselves personally and law enforcement as an  institution").


45
There is a problem, however, which arises when criminal sanction  of homosexuality is eliminated but moral and social disapprobation of  homosexuality is meant to be retained.  The Court cannot be unaware of  that problem; it is evident in many cities of the country, and  occasionally bubbles to the surface of the news, in heated political  disputes over such matters as the introduction into local schools of  books teaching that homosexuality is an optional and fully acceptable  "alternate life style."  The problem (a problem, that is, for those who  wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM,  have high disposable income, see ibid.; App. 254 (affidavit of Prof.  James Hunter), and of course care about homosexual-rights issues much  more ardently than the public at large, they possess political power  much greater than their numbers, both locally and statewide.  Quite  understandably, they devote this political power to achieving not merely  a grudging social toleration, but full social acceptance, of  homosexuality.  See, e.g., Jacobs, The Rhetorical Construction of  Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev.  723, 724 (1993) ("[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation").


46
By the time Coloradans were asked to vote on Amendment 2, their  </B></I>exposure to homosexuals' quest for social endorsement was not limited to  newspaper accounts of happenings in places such as New York, Los  Angeles, San Francisco, and Key West.  Three Colorado citiesAspen,  Boulder, and Denver-had enacted ordinances that listed "sexual orientation" as an impermissible ground for discrimination, equating the  moral disapproval of homosexual conduct with racial and religious  bigotry.  See Aspen Municipal Code Section(s) 13-98 (1977); Boulder Rev.  Municipal Code Section(s) 12-1-1 to 12-1-11 (1987); Denver Rev.  Municipal Code, Art. IV Section(s) 28-91 to 28-116 (1991).  The  phenomenon had even appeared statewide: the Governor of Colorado had  signed an executive order pronouncing that "in the State of Colorado we  recognize the diversity in our pluralistic society and strive to bring  an end to discrimination in any form," and directing state agency-heads  to "ensure non-discrimination" in hiring and promotion based on, among  other things, "sexual orientation." Executive Order No. D0035 (Dec. 10, 1990).  I do not mean to be critical of these legislative successes;  homosexuals are as entitled to use the legal system for reinforcement of  their moral sentiments as are the rest of society.  But they are subject  to being countered by lawful, democratic countermeasures as well.


47
That is where Amendment 2 came in.  It sought to counter both the geographic concentration and the disproportionate political power of  homosexuals by (1) resolving the controversy at the statewide level, and   (2) making the election a single-issue contest for both sides.  It put  directly, to all the citizens of the State, the question: Should  homosexuality be given special protection?  They answered no.  The Court  today asserts that this most democratic of procedures is  unconstitutional.  Lacking any cases to establish that facially absurd  proposition, it simply asserts that it must be unconstitutional, because  it has never happened before.


48
"[Amendment 2] 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 itselfinstructive . . . .


49
"It is not within our constitutional tradition to enact      laws of  this sort.  Central both to the idea of the rule of      law and to our own  Constitution's guarantee of equal      protection is the principle that  government and each of its      parts remain open on impartial terms to all  who seek its      assistance."  Ante, at 11-12.


50
As I have noted above, this is proved false every time a state  law prohibiting or disfavoring certain conduct is passed, because such a  law prevents the adversely affected group-whether drug addicts, or  smokers, or gun owners, or motorcyclists-from changing the policy thus  established in "each of [the] parts" of the State.  What the Court says  is even demonstrably false at the constitutional level.  The Eighteenth  Amendment to the Federal Constitution, for example, deprived those who  drank alcohol not only of the power to alter the policy of prohibition  locally or through state legislation, but even of the power to alter it through state constitutional amendment or federal legislation. The  Establishment Clause of the First Amendment prevents theocrats from  having their way by converting their fellow citizens at the local,  state, or federal statutory level; as does the Republican Form of  Government Clause prevent monarchists.


51
But there is a much closer analogy, one that involves precisely  the effort by the majority of citizens to preserve its view of sexual  morality statewide, against the efforts of a geographically concentrated  and politically powerful minority to undermine it.  The constitutions of  the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day  contain provisions stating that polygamy is "forever prohibited."  See  Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, Section(s) 4; N.  M. Const., Art. XXI, Section(s) 1; Okla. Const., Art. I, Section(s) 2;  Utah Const., Art. III, Section(s) 1. Polygamists, and those who have a  polygamous "orientation," have been "singled out" by these provisions  for much more severe treatment than merely denial of favored status; and  that treatment can only be changed by achieving amendment of the state  constitutions.  The Court's disposition today suggests that these  provisions are unconstitutional, and that polygamy must be permitted in  these States on a state-legislated, or perhaps even local-option, basis-unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.


52
The United States Congress, by the way, required the inclusion  of these antipolygamy provisions in the constitutions of Arizona, New  Mexico, Oklahoma, and Utah, as a condition of their admission to  statehood.  See Arizona Enabling Act, 36 Stat. 569; New Mexico Enabling  Act, 36 Stat. 558; Oklahoma Enabling Act, 34 Stat. 269; Utah Enabling  Act, 28 Stat. 108.  (For Arizona, New Mexico, and Utah, moreover, the  Enabling Acts required that the antipolygamy provisions be "irrevocable  without the consent of the United States and the people of said  State"-so that not only were "each of [the] parts" of these States not "open on impartial terms" to polygamists, but even the States as a whole  were not; polygamists would have to persuade the whole country to their  way of thinking.)  Idaho adopted the constitutional provision on its  own, but the 51st Congress, which admitted Idaho into the Union, found  its constitution to be "republican in form and . . . in conformity with  the Constitution of the United States."  Act of Admission of Idaho, 26  Stat. 215 (emphasis added).  Thus, this "singling out" of the sexual practices of a single group for statewide, democratic vote-so utterly  alien to our constitutional system, the Court would have us believe-has  not only happened, but has received the explicit approval of the United  States Congress.


53
I cannot say that this Court has explicitly approved any of these state constitutional provisions; but it has approved a territorial  statutory provision that went even further, depriving polygamists of the  ability even to achieve a constitutional amendment, by depriving them of  the power to vote.  In Davis v. Beason, 133 U. S. 333 (1890), Justice  Field wrote for a unanimous Court:


54
"In our judgment, Section(s) 501 of the Revised Statutes of Idaho Territory, which provides that `no person . . . who is a bigamist  or polygamist or who teaches, advises, counsels, or encourages any  person or persons to become bigamists or polygamists, or to commit any  other crime defined by law, or to enter into what is known as plural or  celestial marriage, or who is a member of any order, organization or  association which teaches, advises, counsels, or encourages its members  or devotees or any other persons to commit the crime of bigamy or  polygamy, or any other crime defined by law . . . is permitted to vote  at any election, or to hold any position or office of honor, trust, or  profit within this Territory,' is not open to any constitutional or  legal objection."  Id., at 346-347 (emphasis added).


55
To the extent, if any, that this opinion permits the imposition  of adverse consequences upon mere abstract advocacy of polygamy, it has  of course been overruled by later cases.  See Brandenburg v. Ohio, 395  U. S. 444 (1969) (per curiam).  But the proposition that polygamy can be  criminalized, and those engaging in that crime deprived of the vote,  remains good law.  See Richardson v. Ramirez, 418 U. S. 24, 53 (1974).  Beason rejected the argument that "such discrimination is a denial of  the equal protection of the laws."  Brief for Appellant in Davis v.  Beason, O. T. 1889, No. 1261, p. 41.  Among the Justices joining in that rejection were the two whose views in other cases the Court today treats  as equal-protection lodestars-Justice Harlan, who was to proclaim in  Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion), that  the Constitution "neither knows nor tolerates classes among citizens,"  quoted ante, at 1, and Justice Bradley, who had earlier declared that  "class legislation . . . [is] obnoxious to the prohibitions of the  Fourteenth Amendment," Civil Rights Cases, 109 U. S. 3, 24 (1883),  quoted ante, at 14.3


56
This Court cited Beason with approval as recently as 1993, in an  opinion authored by the same Justice who writes for the Court today.  That opinion said: "[A]dverse impact will not always lead to a finding  of impermissible targeting.  For example, a social harm may have been a  legitimate concern of government for reasons quite apart from  discrimination. . . . See, e.g., . . . Davis v. Beason, 133 U. S. 333   (1890)."  Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520,  535  (1993).  It remains to be explained how Section(s) 501 of the Idaho  Revised Statutes was not an "impermissible targeting" of polygamists,  but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals.  Has the Court concluded that the perceived social harm of  polygamy is a "legitimate concern of government," and the perceived  social harm of homosexuality is not?

IV

57
I strongly suspect that the answer to the last question is yes,  which leads me to the last point I wish to make: The Court today,  announcing that Amendment 2 "defies . . . conventional [constitutional]  inquiry," ante, at 10, and "confounds [the] normal process of judicial  review," ante, at 11, employs a constitutional theory heretofore unknown  to frustrate Colorado's reasonable effort to preserve traditional  American moral values. The Court's stern disapproval of "animosity"  towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in Murphy v.  Ramsey, 114 U. S. 15 (1885), rejecting a constitutional challenge to a  United States statute that denied the franchise in federal territories  to those who engaged in polygamous cohabitation:


58
"[C]ertainly no legislation can be supposed more wholesome and  necessary in the founding of a free, self-governing commonwealth, fit to  take rank as one of the co-ordinate States of the Union, than that which  seeks to establish it on the basis of the idea of the family, as  consisting in and springing from the union for life of one man and one  woman in the holy estate of matrimony; the sure foundation of all that  is stable and noble in our civilization; the best guaranty of that  reverent morality which is the source of all beneficent progress in  social and political improvement."  Id., at 45.


59
I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as  opposed to the political branches) to take sides in this culture war.


60
But the Court today has done so, not only by inventing a novel  and extravagant constitutional doctrine to take the victory away from  traditional forces, but even by verbally disparaging as bigotry  adherence to traditional attitudes.  To suggest, for example, that this  constitutional amendment springs from nothing more than "`a bare . . .  desire to harm a politically unpopular group,'" ante, at 13, quoting  Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973), is  nothing short of insulting.  (It is also nothing short of preposterous  to call "politically unpopular" a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of 46% of the voters on Amendment 2, see App. to Pet. for Cert.  C-18.)


61
When the Court takes sides in the culture wars, it tends to be  with the knights rather than the villeins-and more specifically with the  Templars, reflecting the views and values of the lawyer class from which  the Court's Members are drawn. How that class feels about homosexuality  will be evident to anyone who wishes to interview job applicants at  virtually any of the Nation's law schools.  The interviewer may refuse  to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the  wrong country club; because he eats snails; because he is a womanizer;  because she wears real-animal fur; or even because he hates the Chicago  Cubs.  But if the interviewer should wish not to be an associate or  partner of an applicant because he disapproves of the applicant's  homosexuality, then he will have violated the pledge which the  Association of American Law Schools requires all its member-schools to  exact from job interviewers: "assurance of the employer's willingness"  to hire homosexuals.  Bylaws of the Association of American Law Schools, Inc. Section(s) 6-4(b); Executive Committee Regulations of the Association of American Law Schools Section(s) 6.19, in 1995 Handbook,  Association of American Law Schools.  This law-school view of what  "prejudices" must be stamped out may be contrasted with the more  plebeian attitudes that apparently still prevail in the United States  Congress, which has been unresponsive to repeated attempts to extend to  homosexuals the protections of federal civil rights laws, see, e.g.,  Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments of 1975, H. R. 5452, 94th Cong., 1st  Sess. (1975), and which took the pains to exclude them specifically from  the Americans With Disabilities Act of 1990, see 42 U. S. C. Section(s)  12211(a) (1988 ed., Supp. V).


62
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.



*
 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience  of the reader.  See United States v. Detroit Lumber Co., 200 U. S. 321,  337.


1
 The Court evidently agrees that "rational basis"-the normal test for compliance with the Equal Protection Clause-is the governing  standard.  The trial court rejected respondents' argument that  homosexuals constitute a "suspect" or "quasi-suspect" class, and  respondents elected not to appeal that ruling to the Supreme Court of  Colorado.  See Evans v. Romer, 882 P. 2d 1335, 1341, n.  3 (1994).  And  the Court implicitly rejects the Supreme Court of Colorado's holding,  see Evans v. Romer, 854 P. 2d 1270, 1282 (1993), that Amendment 2  infringes upon a "fundamental right" of "independently identifiable  class[es]" to "participate equally in the political process."  Ante, at  4.
The Supreme Court of Colorado stated: "We hold that the portions of Amendment 2 that would remain if only the provision concerning sexual orientation were stricken are not autonomous and thus,  not severable," 882 P. 2d, at 1349.  That statement was premised,  however, on the proposition that "[the] four characteristics [described  in the Amendment-sexual orientation, conduct, practices, and  relationships] are not truly severable from one another because each  provides nothing more than a different way of identifying the same class  of persons."  Id., at 1349-1350 (emphasis added).  As I have discussed  above, if that premise is true-if the entire class affected by the  Amendment takes part in homosexual conduct, practices and  relationships-Bowers alone suffices to answer all constitutional  objections.  Separate consideration of persons of homosexual  "orientation" is necessary only if one believes (as the Supreme Court of  Colorado id not) that that is a distinct class.
The Court labors mightily to get around Beason, see ante,  at 12-13, but cannot escape the central fact that this Court found the  statute at issue-which went much further than Amendment 2, denying  polygamists not merely special treatment but the right to vote-"not open  to any constitutional or legal objection," rejecting the appellant's  argument (much like the argument of respondents today) that the statute  impermissibly "single[d] him out," Brief for Appellant in Davis v.  Beason, O. T. 1889, No. 1261, p. 41.  The Court adopts my conclusions  that (a) insofar as Beason permits the imposition of adverse  consequences based upon mere advocacy, it has been overruled by  subsequent cases, and (b) insofar as Beason holds that convicted felons  may be denied the right to vote, it remains good law.  To these  conclusions, it adds something new: the claim that "[t]o the extent   [Beason] held that the groups designated in the statute may be deprived  of the right to vote because of their status, its ruling could not stand  without surviving strict scrutiny, a most doubtful outcome."  Ante, at  12-13.  But if that is so, it is only because we have declared the right  to vote to be a "fundamental political right," see, e.g., Dunn v.  Blumstein, 405 U. S. 330, 336 (1972), deprivation of which triggers  strict scrutiny.  Amendment 2, of course, does not deny the fundamental  right to vote, and the Court rejects the Colorado court's view that  there exists a fundamental right to participate in the political  process. Strict scrutiny is thus not in play here.  See ante, at 10. Finally, the Court's suggestion that Section(s) 501 of the Revised Statutes of Idaho, and Amendment 2, deny rights on account of "status"   (rather than conduct) opens up a broader debate involving the  significance of Bowers to this case, a debate which the Court is  otherwise unwilling to join, see supra, at 6-9.


