Domestic Religious Liberty


November 13, 2018

Revisiting the Romer Decision

Although decisive battles over same-sex behavior and marriage are past, the conflict continues to be a problem, because it continues to threaten both religious and personal liberty. The outcome of these battles was largely foreordained by court decisions over which the public has no control, and thus it is worth revisiting the Supreme Court decision that opened this era, namely the Romer vs. Evans decision in 1996.

This decision provided a basis in constitutional law for what are understood as “gay rights,” and now “transgender rights,” and people need to clearly understand the problems with the decision to understand what is wrong with “gay” or “transgender” rights.

The Supreme Court by a 5 to 4 vote, with Anthony Kennedy casting the deciding vote and authoring the decision, declared unconstitutional Amendment 2 to Colorado’s state constitution, which prohibited local homosexual rights ordinances. The amendment had been approved in a state-wide referendum. Although the court had upheld state sodomy laws only a decade earlier, and although the state of Colorado appealed to the religious freedom of private citizens who might be required to facilitate homosexual behavior as a result of such local ordinances, the court ruled the amendment unconstitutional because it was based on the voters’ “animus” against homosexuals as a class.

The decision was audacious, and unsurprisingly, has led to no end of conflict. The first thing to notice from the standpoint of classical liberalism is that the court impugned democracy by attacking the motives of the voters. The essence of democracy is majority rule, and the decision said that voters were wrong to make the decision they did. One can argue against majority rule, but the only alternative is rule by some kind of elite — religious, ideological, aristocratic, or other minority.

Secondly, “animus,” which served as the basis for the decision, is inseparable from politics. Political controversy involves enormous hostility. Inescapably, this involves a degree of hostility toward the people on the other side as well as their ideas and proposals. Whatever one thinks of that, it simply has to be accepted as part of democratic politics.

It might be observed as well, as this writer did shortly after the Windsor decision (2013) voiding the Defense of Marriage Act (DOMA), that to taint ideas (in this case, the sinfulness or evil of homosexuality) as oppressive, and then to police society against them, is characteristic of totalitarian states. The official names of communist countries (i.e., the German Democratic Republic, the People’s Republic of China, etc.) all testify to a society carefully monitored, at all levels, and in both public and private spheres, to ensure that no oppressive ideas affect it.

As Justice Scalia noted in his dissent, Amendment 2 did not authorize general discrimination against homosexuals, they remained fully protected by all laws, civil rights and otherwise, that protect all citizens, it simply prohibited using homosexuality as a category for immunity from public and private discrimination. Colorado’s Amendment 2 was declared unconstitutional because homosexuals were disadvantaged by it just as any other group might be disadvantaged by state law, such as relatives of local government officials seeking municipal contracts. If state law cannot bind local law because some group objects to a benefit or disadvantage conferred by state law, multilevel government would be practically impossible, he observed.

The real justification for voiding Amendment 2 was that it is irrational to use homosexuality as a criterion for disadvantage. But this is a matter of one’s viewpoint — many Americans believe (and a majority of Colorado voters thought) that homosexuals as a class should not be immune from public and private judgment, which is what protected civil rights status confers. The religious freedom of private citizens engaging the public who might be required to facilitate homosexual behavior was cited to justify the law. But five U.S. Supreme Court justices thought that the voters were wrong, and imposed their will, charging the voters with “animus.”

To use “animus,” the court in fact had to incorporate behavior and inclination into personal identity, and in that way claimed that behavior and inclination are due equal protection. As Scalia also noted, courts had disputed as to what classes a person as homosexual, and indeed it could be added, homosexual persons are not really an objectively identifiable group, having no immutable characteristic. Past controversy over a genetic basis for homosexuality ignores the fact those involved in the movement for homosexual liberation surely would not want any objective basis, as it might restrict what any given person has the right to do. Only behavior and sexual inclination really class a person as homosexual, and personal behavior obviously cannot be given liberty or equality. To do so would make the vilest crimes legal. Nor can civil rights for personal behavior be restricted to sexual behavior, if we define our own realities. In that case we don’t know what sex is. We see the consistent extension of self-defined reality with transgenderism. In essence anything that someone defines as “sexual” becomes immune from legal restraint, even adverse private judgment (i.e., private discrimination). This leaves society (that’s us, everybody except the person wanting his/her own way) defenseless.

If we inquire as to why sexual matters should be immune from public judgment, as the earlier Griswold (1965) and Eisenstadt (1972) decisions began directing the courts to do, the answer given by the Supreme Court in those decisions was the extremely personal, private nature of sexual reality. This fails because people vary in what they think is extremely private, personal, and important. Some may consider sex most important, others (surely millions of Americans) would consider religion most important. The Romer decision is a gross distortion of constitutional freedoms, because the Constitution clearly mandates that “religious exercise” is to be protected – indeed it is the first freedom protected – but says nothing about sex. Indeed, it says nothing about marriage and the family, which was left to state law.

The claim in the Griswold decision that freedom for marital contraception (later extended in subsequent decisions to non-marital contraception, abortion, and homosexual behavior) is “older than the Bill of Rights” (and presumably the Constitution) was based on nothing more than the moral intuition of seven justices that personal sexual decisions are more important than anything else. By this logic, the court in Griswold and subsequent sexual revolution decisions is maintaining that not even a constitutional amendment could alter the sexual rights it decrees. But courts have no competency to know moral truth binding the Constitution, and the authors of the Bill of Rights and the Fourteenth Amendment would have been horrified to think that any right to sexual activity outside of the traditional marriage of man and woman was being guaranteed by their legislation.

Businesspeople, professionals, and young people generally are being educated to accept “gay rights.” The very term immediately puts any opponent in the wrong, implying that people are being denied equal rights if their personal behavior and inclinations are not privileged by the law and society. Yet the belief that homosexual inclination and/or behavior ought to be accepted as proper is only a viewpoint, radically at odds with the past and still widely contested, which courts have essentially adopted by incorporating behavior and inclination into personal identity, and thus into “equal rights.”

The Romer decision explicitly addressed the very issue of the religious freedom of private citizens engaging the public in business relations in situations that might involve facilitating homosexuality, about which there is now intense conflict. It did so by dismissing Amendment 2 as too broad a remedy for the concern. Now we still struggle with Romer, two decades later, because the original objective of Amendment 2 was indeed to protect religious freedom, not to engage in general discrimination against homosexually inclined or active persons.

While law, public opinion, and social practice change, and our very language may incorporate terms that include falsehoods, the natural rights on which liberal society is based simply cannot consistently include personal behaviors and inclinations and still be workable, nor does the duty of Christians to obey God regardless of the law of the state change. We must continually point this out going forward, regardless of social approval or consequences.

10 Responses to Revisiting the Romer Decision

  1. Dan W says:

    Just 20 years ago in the U.S. gay men were imprisoned for acting like gay men. Same sex couples did not have the property rights or healthcare rights that the rest of us took for granted. I would not want to return to those times. American democracy has never been simple majority rule, there have always been constraints on the majority, constraints that have grown stronger over time. While I agree activist politicians and judges often go too far, we are not diminished by treating each other with dignity and respect. The enemy will try to hinder the work of the Spirit and divide God’s people, but we can show mercy the way Christ taught us. Christ did not stone the adulterous woman nor condemn the woman at the well.

    • brandon says:

      He told the adulterous woman to sin no more.

      Back in the 90s we were told gays just wanted to be married, now we are told that gender is a spectrum. Tomorrow, who nows what new ways of sin and evil are invented and allowed to propagate.

      I had tolerated their marriages and now recognize that there can be no compromise with degeneracy. The agenda will not stop until the normalization of all paraphilia.

      • Dan W says:

        My point about the adulterous woman was he showed mercy. The courts did not create gay and lesbian Americans, they just told us we weren’t treating them equally under the law. We shouldn’t be forced to bake a cake for anyone, but we shouldn’t throw them in prison for who they sleep with either.

        • Dan,

          As I said in the article, the purpose of Amendment 2 was not general discrimination against homosexuals, but the protection of the conscience of private citizens against facilitating homosexuality. American society in the 1990s was rapidly becoming more tolerant of homosexuality, both legally and socially, and there was no need to void a constitutional amendment that placed no legal burden on homosexuals, but simply ensured that adverse judgment against homosexuality was not illegal. The problem with the decision, in addition to being legally wrong (as Justice Scalia pointed out) was that it clearly expressed the hostility of the law against opposition to homosexuality. This encourages activists and radicals to pursue traditional believers with the law, prosecuting conscientious objection against facilitating homosexual behavior as well as discrimination against homosexual persons, attacking religious education, private charities, adoption agencies, and anything else that stands in the way of general acceptance of the homosexuality.

          Over time, Justice Kennedy himself seemed to realize this. He protected the Boy Scouts (a private association) against having to hire homosexual scout masters just four years later, noting that private freedom must be protected in a more tolerant environment. The Lawrence decision, voiding the sodomy laws in 2003 (which nevertheless deplored private discrimination), and Obergefell in 2015, mandating same-sex marriage, noted the importance and honorable character of traditional religion and morality in the lives of many Americans. But this tolerance of traditional morality must be given legal force to be more than words. The Masterpiece Cakeshop decision is a start in that direction, but it must be followed up with much more, in particular freedom from the antidiscrimination regime for religious associations, and legal protection against requirements to facilitate homosexual behavior.

          Mississippi’s recently passed religious freedom act seems to offer good, broad protection against private persons being required to facilitate homosexuality, but many more such state laws likely would have been passed, and the severity of the current crisis avoided, without the environment resulting from the Romer decision.

          Rick Plasterer

          • Dan W says:

            Rick thank you for the clarification. I know Romer is complicated. I always admired Justice Scalia and understood why he wrote the dissent. My take away from your article and your comment – we needed to end general discrimination, but the discrimination against individual conscience we got in return is harmful.

  2. David says:

    When the Civil Rights Act was passed there were immediately court challenges that claimed serving Blacks violated people’s freedom of religion. Obviously, this did not stand. Previously, businesses discriminated against Jews and I suppose some religious basis could be claimed for this.

    Religion could be used to justify all sorts of things. Pacifist groups might object to paying taxes used for the military. Other groups could oppose medical research. However, public accommodations should be open to all. We should not be like those southern towns that closed their swimming pools and public schools to avoid integration. Churches are not required to marry anyone. Preparing food for any event does not condone the event. If people do not like same sex marriage then they simply should not marry someone of the same sex. Actions beyond that fall into bigotry. “I distrust those people who know so well what God wants them to do, because I notice it always coincides with their own desires.”—Susan B. Anthony

    • David,

      No one is refusing to serve homosexuals. They are declining to facilitate homosexual behavior. Jack Phillips refused to bake a Halloween cake and a divorce cake. If laws concerning religious discrimination and marital status discrimination (I don’t know the law in Colorado on the latter) were interpreted the way sexual orientation laws are interpreted, he might have been prosecuted for discrimination against neopagans and (possibly) divorced persons.

      There is a difference between disobeying a law you don’t like and one you believe is sinful or evil. No one, not a justice on the Supreme Court or a lawyer in the ACLU thinks the latter should be obeyed, even though no government can tolerate disobedience to its laws. That’s why we have laws that protect conscience. But the Romer decision seemed to imply that the law is hostile to adverse judgment against homosexuality. The religious conscience has therefore not received the protection it should have.

      Jesus is clear that it is sinful to facilitate sinful behavior (Matt. 18:7), and so it is a sin to facilitate homosexual behavior. Laws to the contrary should be disobeyed, regardless of the penalty.

      Rick Plasterer

  3. Andrew says:

    Thank you Rick for your wise words.

  4. Penny says:

    Your article makes so much SENSE. But how to undo what has been done?!

    • Penny,

      Thank you for the complement. Rectifying the grave situation will take a long time, but the best place to start with the public is to emphasize that personal behaviors cannot be equal, and should not be immune from adverse judgment (i.e. discrimination). It must also be emphasized in the beginning that religious freedom is the first freedom mentioned in the Constitution, and religious exercise at a minimum must include the right to decline action believed sinful or evil.

      Rick Plasterer

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