In Romer v. Evans, the Court invalidated a Colorado constitutional amendment that prevented localities from providing certain protections to gay people. Justice Kennedy found that this law singled out a class of people, and heaped a special disability onto them. This violated the Equal Protection clause.
In the wake of recent decisions invalidating bans on same-sex marriage, we may see Romer, in reverse. Utah is considering a state constitutional amendment that prevents churches from being forced to perform same-sex marriages. Sen. Jim Dabakis, a gay and married state senator from Salt Lake City (did anyone think that position could have existed only a few years ago?) supports that law, warned that he would oppose any laws that singled out LGBT people as a special class.
But Dabakis has warned that he and others would fight expansion of such legislation to include allowing wedding photographers, wedding cake bakers, reception centers or other businesses to choose not to serve same-sex couples.
“I would have a problem if they start saying LGBT people are in a special class, and they can be discriminated against,” Dabakis said earlier this month.
Is’t this Romer in reverse? In Romer, a state constitutional amendment was passed that singled out gays as a class of people who could not receive certain protections under the law. As Justice Scalia’s dissent characterized it, the law ensured that everyone was being treated equally, but the majority rejected that understanding of the law.
Here, the situation is exactly the opposite. People would now be allowed to discriminate against LGBT customers. Gays would be singled out as a single class, by statute, as a group that cannot bring any claims for discrimination from certain businesses. Depending how these laws are framed, and the background behind them, I can see a Romer challenge lurking.
There is some irony that we’ve gone from Romer, which prevented cities from providing special protections to gays, to these proposed laws, which would deny gays the protections achieved as a result of same-sex marriage bans falling. It’s been a busy two decades!
I’m putting aside for the moment whether these businesses can be required to provide certain services in violation of First Amendment right against compelled speech, or state religious freedom restoration acts. The compelled speech issue–forcing people to officiate at weddings, bake a wedding cake, photograph a wedding, etc.–is quite serious, and would trump any state statute. But state RFRAs would still be subject to a Romer claim as violative of equal protection as applied.