Evans v. Romer
Why Read Plato?...
“The less that lawyers know
about a subject, the less that
judges will know; and the less
that judges know, the more
likely they are to vote their
prejudices.”
(Nussbaum p. 3 quoting Posner)
Agenda

Sex and the State


Finnis versus Nussbaum


Evans v. Romer: Case and Case-Law
Dissonant Harmony?
Adventures in Critical Thinking

The Arguments: Your Impressions
2013-10-24
Evans v. Romer
3
Sex and the State
Evans v. Romer: Case and Case-Law
Bowers v. Hardwick (1986)
Supreme Court Case
 Sodomy law upheld

“To hold that the act of homosexual
sodomy is somehow protected as a
fundamental right would be to cast
aside millennia of moral teaching”
(Chief Justice Warren Burger)
2013-10-24
Evans v. Romer
5
Colorado Amendment 2 (1992)

Outlawing…


pro-gay/bi legislation
Denying…

sexual minority rights
recognition
2013-10-24
Evans v. Romer
6
Challenge: Evans v. Romer

Plaintiffs
Richard G. Evans
 John Miller
 Priscilla Inkpen
 et al.


Defendants
Gov. Roy Romer
 state of Colo.
 state attorney general

2013-10-24
Evans v. Romer
7
Federal Appeal…

Struck down (5/21/1996)


14th amendment (equal
protection)
Scalia dissent…

2013-10-24
Amendment 2 as “modest
attempt ... to preserve
traditional sexual mores
against the efforts of a
politically powerful minority”
Evans v. Romer
8
Aftermath…

Lawrence v. Texas (2003)


Overturns Bowers v. Hardwick
Same-sex marriage

Legalized
Massachusetts
 Connecticut
 California


Outlawed
Arizona
 California (Proposition 8, 2008)

2013-10-24
Evans v. Romer
9
Finnis versus Nussbaum
Dissonant Harmony?
Authors and Aims

Finnis, “Law, Morality, and ‘Sexual
Orientation’ ”
 Notre Dame Law Review 69.5
(1994) 1049–76
2013-10-24

Nussbaum, “Platonic Love and
Colorado Law: The Relevance of
Ancient Greek Norms to Modern
Sexual Controversies”
 Virginia Law Review 80.7 (1994)
1515–1652
Evans v. Romer
11
What say they/you?...
Finnis
 Traditional morality
standard




Standard Modern (European)
Position
Moral argument


as per Burger
Parallel


Nussbaum
 Evolving standards
perspective
Ancient texts as


Homoerotic sex as
actualizing no good
as per Warren
Thought experiments in
diversity
Interrogations of
assumptions
Textual-historical validation
2013-10-24
Evans v. Romer
12
Adventures in Critical Thinking
The Arguments: Your Impressions
The Arguments: Your Impressions
2013-10-24
Evans v. Romer
14