Gay Anti-Discrimination Cases

"If Bowers said it was constitutional to criminalize homosexual conduct," as the argument goes, "how can Evans, without even discussing Bowers, find unconstitutional the lesser step of simply prohibiting anti-discrimination provisions that protect homosexuals?" Though Romer held that animus was an impermissible justification for a Colorado law which denied homosexuals the right to have laws passed protecting them from discrimination, the statute at issue in this case, and Bowers v. Hardwick, is not based on …

…group with only a very mild correspondence to those who engage in “homosexual sodomy.” Moreover, given the importance of the kinds of transactions protected by anti-discrimination laws, Amendment 2 cannot fairly be characterized as a “lesser” burden necessarily pre-approved by Bowers. The state's ability to prohibit the choice of particular sexual practices does not implicitly sanction “exclusion from ordinary civic life in a free society” for those people who might be presumed to prefer those practices.