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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 animus against persons but rather on a legitimate state interest in promoting sexual morality As a result Romer described the formation of a structural caste system created on the basis of sexual orientation which was deemed unconstitutional In contrast Bowers pertained to governing forms of behavior considered constitutional under light scrutiny The foremost concern in Romer Amendment 2 to Colorados state constitution would have established constitutional restraints that would disallow any municipality or other local government to pass gay rights statutes In Romer the Court held on Equal Protection grounds that Amendment 2 discriminated against homosexuals merely on the basis of animus which is an impermissible basis for legislation of any kind Romer did not apply strict scrutiny to the Colorado amendment Rather the Courts opinion held that Amendment 2 was impermissible even under the light tests of rational relatedness to legitimate government purposes The Court wrote that homosexuals are put in a solitary class without the availability of legal protection Though there was no fundamental right at issue the classification of persons into classes was found to itself be at odds with the American constitutional tradition At the end of the Romer opinion the Court added 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 government purpose Such a purpose was lacking according to the court because mere animosity justified the passage
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