Evans v. Romer (or, once it reached the Surpreme Court, Romer v. Evans)

Readings: Access and Page Ranges

Access Both via Bb PDFs:

Finnis, J. “Law, Morality, and ‘Sexual Orientation.’ ” Notre Dame Law Review 69.5 (1994): 1049–76.

Read entire article — much of that is endnotes, so not that long.

Nussbaum, Martha C. “Platonic Love and Colorado Law.” Virginia Law Review 80 (1994): 1515–652.

Read the following page ranges, much of which is footnotes, so not so very long!

  • pp. 1515-1531 (through section III)
  • pp. 1538 (sect. V)-1606

Journal Entries

What do you feel are the chief strengths and weaknesses of, respectively, Nussbaum and Finnis? Explain. . . .

Web Links

Introductory Remarks

The present readings relate to Evans v. Romer (or Romer v. Evans once it reached the Supreme Court), a Colorado court case in which the plaintiffs successfully challenged the constitutionality of an (in effect) anti-gay-rights amendment to the Colorado state consitution: Amendment 2. The case went to the Supreme Court, where the amendment was struck down.

  • In the Colorado courts, the case was known as Evans v. Romer, because Evans and others, as they were challenging the amendment, functioned as plaintiffs, those who were bringing the civil case. Romer (Roy Romer) was named as defendant in his capacity of state governor. When the Colorado Supreme Court struck the amendment down, it was the state that appealed and therefore appeared as plaintiff in the process leading to the US Supreme Court's hearing the case of Romer v. Evans.

It is that case, Evans v. Romer, and the use made of ancient texts by both sides to the dispute, that our class will take as its starting point with a view, ultimately, to the writing of the final paper.

As to the case itself, "Amendment 2," passed in response to legislation designed to protect gay rights, effectively outlawed such legislation in the state of Colorado. In so doing, Amendment 2 stated that

no official body in Colorado may adopt any law or policy "whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of . . . a claim to minority status, quota preferences, protected status or claim of discrimination." (Finnis 18 quoting Amendment 2)

The amendment represented, therefore, a setback for gay rights. Its being over-ruled obviously put gay rights back on track in the state, while the whole affair illustrates how social attitudes can make a huge difference in all sorts of ways where sexuality and personal rights are concerned.

But that will not be the primary focus of our reading, reflection, discussion, and paper-writing. Rather, we'll be considering the ways in which ancient authorities and ancient evidence have figured into the controversy — how, that is, two scholars, Martha Nussbaum and John Finnis, offered expert testimony at the original trial and later wrote law review articles based on their testimony. Their respective contributions centered largely around much of the same evidence we have been and soon shall be looking at. What YOU will be doing is critiquing their efforts from your own expert and enlightened perspectives (now that you've read and looked at all that stuff).

History of the Case: Thumbnail Sketch

To introduce the two readings, a brief chronology:

  • 1991-1992: Amendment 2 to the Colorado state constitution proposed and passed; bans laws meant to protect minority rights of gays
  • 1992: Evans et al. file suit against Roy Romer, gov. of Colorado; argue that Amendment 2 unconstitutional
  • 1993: Denver District Court hears case; FINNIS and NUSSBAUM offer expert testimony supplying context to the ethical and intellectual-historical sides of the case. Court rules Amendment 2 unconstitutional; Colo. Supreme Court upholds lower court ruling
  • 1995-1996: US Supreme Court hears case; Amendment 2 struck down in 6-3 decision. Violates 14th amendment of US Constitution: no person shall be denied equal protection under the laws. (Colo. Amendment 2 imposed broad disability on a single group: homosexuals)

Finnis and His Positions

At the trial, Finnis testified in behalf of the defendant (technically, Governor Romer, but in effect, the Colorado constitutional amendment alleged to be prejudicial to the rights of sexual minorities). Finnis' argument, "one he traces to 'Plato and those many philosophers who followed him,' [began] from the premise that it is morally bad to use the body of another person as an instrument for the purpose of one's own private pleasure or satisfaction" (Nussbaum 1525).

In his article, Finnis starts by setting forth a kind of precedent — or maybe better moral-legal parallel — he terms the Standard Modern [European] Position (I'll call it SM[E]P): that political entities (states, etc.), though they do not have the right to prohibit "immoral sexual acts" between consenting adults, may seek to discourage them, in accordance with prevailing mores. Finnis discusses how "sexual orientation" cannot serve as a legal category, though that cannot stop the state from concerning itself with sexual morality. He then goes on to justify that concern based on the Western philosophical-ethical tradition, especially as evidenced in works of ancient Greek and Roman writers.

As Finnis' "standard modern [European] position" and other points may cause some confusion, I'll try to clarify as follows:

  1. The "standard modern [European] position" (SM[E]P):
    • Governments may take measures to DISCOURAGE sexual conduct that is contrary to prevailing mores, though governments may not directly PROHIBIT "immoral" acts practiced in private by consenting adults. Governments may not, in other words, act like parents toward consenting adults, nor take over the functions of parents under ordinary curcumstances. Nor may governments, or anyone, take discriminatory action against the presumed inclinations of individuals, though (according to the SM[E]P) there are not the same protections for sexual rights as there are for the rights of racial, religious, or other, similar minorities. Rather, goverments may provide substantive moral SUPPORT to "parents and non-political voluntary associations" in the promotion of prevailing mores (1052)
    • SM[E]P does not concern itself with "sexual orientation," a notion it treats as too ambiguous to be useful as a legal category because, according to the SM[E]P, two separate concepts are combined therein: (1) psychological inclination; and (2) public demonstrations of one's identification with, and willingness to promote, this or that pattern of sexual conduct
  2. There has evolved over time (and beginning with ancient authorities) a "natural law" standard of sexual morality (see sects. V-VI). Under this standard, approved (i.e., "natural") sexual behaviors — these consist of nothing but in-wedlock, heteroerotic, genital intercourse — are expressions of marriage as a common good.
  3. In his section VII, Finnis offers his own, more philosophical version of SM[E]P, namely, that the goods governments supply are INSTRUMENTAL toward (i.e., supportive of) other, more fundamental goods; they are not goods in themselves. So, for instance, governments should be in the business of supporting, not enforcing, sexual morality — SM[E]P.

Nussbaum and Her Positions

At the original trial, Martha Nussbaum was called in by the plaintiffs to rebut the claim that ancient Greek and Roman philosophy provides a coherent basis for regarding homoerotic relations as immoral, and the state as justified in seeking to discourage, if not to prohibit, them. You will find that in her article, she runs through much of that tradition and discusses several texts that we have read or shall soon read.

Nussbaum acknowledges that the legal argument must succeed or fail on its own merits, not based on appeals to authority, ancient or otherwise. Still, she contends that, given attempts by the defense to situate its position within the Western intellectual tradition, it matters to get that tradition right — that, because of the relevance (raised by the defense) of moral considerations, "getting the Greeks right . . . [helps] us in no small measure to get our own arguments right — by removing a false sense of inevitability about our own judgments and practices, and by showing us moral arguments of great rational power" (1531).

Additional Questions

In teaching these texts, I have found found that students can understandably be prone to getting hung up on certain intractable problems or emotionally fraught issues. With that in mind, and in the hope that discussion will be free-flowing without becoming bogged down or uncollegial, I shall try to guide it toward issues that we can more productively engage.

I would, therefore, like us to steer clear of, or at least not to obsess over, the following:

  • The "true" and "precise" meaning of certain Greek words like tolmema ("act of daring," "venturesomeness," "effrontery") or para phusin ("contrary to nature/growth/procreation" [??]). Talk about sure; devote the entire class to, no thanks, as those are details that continue to bedevil the experts, and we won't likely have much to add
  • The (supposed) irrelevance of ancient texts, given that this is a modern case. Both authors, experts in their own right, clearly think otherwise and have found grounds to introduce the considerations they do. We shall critique their arguments, and therefore need to try to understand them; we have no right to dismiss them
  • Disrespect for, or demonization of, either position. We are here touching upon extremely sensitive issues. While it is to be expected that we bring to class our own predispositions and ideological commitments, it is, nevertheless, absolutely incumbent on us to approach these issues respectfully and open-mindedly

Let us, therefore, ask questions — on the whole, more analytical and ethical-philosophical than narrowly legalistic, ideological-tendentious, or nitpicking — like the following, around which class discussion will center:

  • What are, in a nutshell, the arguments of each side?
    • What is the common ground between them?
    • How do they diverge?
    • How, indeed, do they clash?
  • How does each side marshall its evidence? What use does each make thereof? How shall we critique that?
  • What kind of framing does the ancient evidence provide for this kind of case?
    • How, in a sense, are the Greeks and Romans still with us? How are they, in a sense, "us"?
    • Conversely, in what ways does our reception of the Greek and Roman sources need to confront their "otherness"?
  • Finnis and Nussbaum assume (each in his or her own way) broad-based continuities bolstering his or her own argument:
    • Finnis, that a certain privileging of stable, procreative sexual relationships is shared by a number of cultures across a number of time-periods
    • Nussbaum, that "the Greeks" for about three quarters of a millenium or longer (ca. 500 BCE into the third century CE) did not deviate much from that core sexual ethic she sets forth
  • Should we, though, be privileging continuities like that? Or do things change enough across time and/or space, even if we confine our purview just to the ancient Mediterranean, that it matters for the kinds of arguments F&N offer? What can the Roman or late antique sources tell us?
  • What would Finnis and Nussbaum say if asked to comment on how one or more of our second-half-semester sources reflects on or fits into their respective arguments? (What does either actually say where he or she in fact comments?) How in your opinion does that evidence reflect on them?
  • Is there an issue (love and marriage, love and homoerotic relations, erotic parity, erotic assymetry) that comes up in one or more of our second-half-semester primary texts/artifacts, and that Finnis and Nussbaum reflect on? How might any of those sources change things for F&N?
  • F&N share a certain focus on the moral goods offered by sexual relationships of varying sorts. But are the other ways (say, anthropological) to think about the evidence, such that a mostly ethical perspective might require supplementing? Again, what can later sources tell us about that?

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