Colorado's amendment 2 : how far can the U.S. Supreme Court stretch equal protection?


This thesis will explore the activist direction the U.S. Supreme Court has taken in relation to the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution with respect to Colorado's Amendment 2. The effects of such activism in the case of Romer v. Evans, the case in which Amendment 2 was constitutionally challenged for excluding homosexuals from existing anti-discrimination laws, include circumventing democracy and the improper assertion of constitutional conflict with respect to the inclusion of homosexuals in our equal protection laws. Historically, judicial activism has played a large role in interpreting the extent of equal protection to everyone under the law. Since Brown v. Board of Education, the judiciary has actively interpreted equal protection to include its own social theories and justices. As a result, equal protection has been stretched far beyond what the framers had intended. The U.S. Supreme Court's activist decision in Romer not only extended the interpretation of equal protection, but exhibited an abuse of judicial review. The issue of gay rights is clearly a social one and social issues, because of their inherent moral nature, are theoretically best decided democratically. Within the last decade, and more particularly within the last year, we have seen more social issues, like gay rights, that have been decided by voter initiative overturned by activist courts. This judicial intervention of voter referendum essentially erodes our democratic system. The Romer decision is a clear example of an activist court prohibiting the citizens of a state to control the actions of their government. The U.S. Supreme Court conceivably abused judicial review in this case and unjustifiably asserted voter referendum, the most democratic act, as unconstitutional. The issue of whether Colorado's Amendment 2 violated the Equal Protection Clause is clearly determined through the consideration of the original intent of the framers and strictly construing the constitution and its accompanying civil rights laws. Since homosexuals are not a federally protected class and the State of Colorado is not constitutionally or federally required to protect such a class, no constitutional conflict exists in the provisions set forth in Amendment 2. Affording this class protection is an extension unwarranted by the theory of equal protection laws, and is adverse to Bowers v. Hardwick. The U.S. Supreme Court's decision to strike down Colorado's Amendment 2 is a perfect example of "stretching" of the equal protection to unauthorized limits.

The interpretation of the Equal Protection Clause by an activist court can sometimes be a precarious one and the consequences can be profound. Although the U.S. Supreme Court's decision in Romer created no new rights for homosexuals and fell short of declaring them a "suspect class," it erroneously elevated a rather small, yet recently politically powerful class of people to the same level as that of racial minorities, women, and religious groups. Thus, begging the question of whether sexual orientation should be included in those enumerated civil rights classes we know so well. When examining the inherent uncontrollable nature of the current enumerated categories together with the fact that science is still divided on whether homosexuality is a controlled behavior concludes that presently, homosexuals should not be included in the federal civil rights categories. Therefore, such a cultural debate is best reserved for the states and their communities. The issue of whether homosexuals should be entitled to special protective legislation is one that is plagued by morality, and like other moral issues, such as abortion, has become very controversial. The main objective of this thesis is to view the Supreme Court's decision in Romer v. Evans from a very restrainist standpoint as opposed to an activist standpoint. This thesis will attempt to wade through the moral influences of this issue and analyze the case of Romer v. Evans from a strict constructionist point of view.


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Thesis Completion





Remis, Robert


Bachelor of Arts (B.A.)


College of Health and Public Affairs

Degree Program

Legal Studies


Dissertations, Academic -- Health and Public Affairs;Health and Public Affairs -- Dissertations, Academic







Access Status

Open Access

Length of Campus-only Access


Document Type

Honors in the Major Thesis

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