Romer v. Evans: The Supreme Court's Assault on Popular Sovereignty

Civil Rights Practice Group Newsletter - Volume 1, Issue 1, Fall 1996

Four years ago, the voters of Colorado enacted by referendum a state constitutional amendment (known as "Amendment 2") which provided that no municipality or other governmental body in the state could grant protected minority status or preferences based on homosexual or bisexual orientation or conduct. On May 20, 1996, the Supreme Court decided Romer v. Evans, invalidating Amendment 2 as unconstitutional under the federal Equal Protection Clause. This is a fundamentally flawed decision which has troubling implications for the political process and traditional morality in the United States. Before discussing that point, however, we would like to point out a few of the peculiarities of the opinion.

The Court claims that "Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else." How exactly, one may ask, does it make them unequal? The Court can come up with no convincing argument, however, because homosexuals and bisexuals, even after passage of Amendment 2, are still protected by anti-discrimination laws of general application. As Justice Scalia points out in a powerful dissent, what Amendment 2 actually did was simply make it unlawful for municipalities to grant homosexuals and bisexuals the special protection afforded to racial and ethnic minorities, unless they could convince the citizenry of Colorado to amend their constitution to do so. Thus, the second part of the above-quoted sentence -- asserting that Amendment 2 subjects homosexuals to unequal treatment -- is incorrect. But so is the first part of the sentence.

The Court said, in elaborating on the idea that Amendment 2 does "not further a proper legislative end":

We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests

We suggest that the "factual context" the Court is unable to find was obvious to a majority of the citizens of Colorado, and is equally so to most Americans. That context is the morass of social problems in which we find ourselves - a high and growing divorce rate, a high and growing illegitimacy rate, a high and growing crime rate, a high and growing underclass, etc. The fact is that study after study demonstrates that the root cause of many, if not most, of America's social problems is found in the breakdown of the married two-parent family. Surely it should be obvious even to the Supreme Court that the "proper legislative end" to which Amendment 2 is directed is the preservation of that institution by expressing societal disapprobation of sexual immorality and "alternative lifestyles" based on it.

While straining to find an equal protection argument with which to invalidate Amendment 2, the Court all but ignores the most clearly relevant precedent - that addressing polygamy. The parallel between a polygamous union and a homosexual union as societally disapproved alternatives to the traditional married two-parent family is almost too obvious to mention; yet the Court ignores a line of precedent which allowed such polygamous unions to be proscribed as a condition for admission to the Union of those territories where such unions were permitted. If it is constitutionally permissible to proscribe polygamous unions and, obviously, preferential treatment of polygamists, why is it impermissible to proscribe preferential treatment based on homosexuality? Indeed, the Court ignores a much more recent precedent, the 1986 case of Bowers v. Hardwick, in which the justices upheld as constitutionally valid a state law forbidding, with force of criminal sanctions, homosexual conduct. Justifiably, Justice Scalia pours scorn on the majority opinion in Romer for failing even to mention Bowers.

What is going on here? Why did the Court ignore relevant precedent, blind itself to social disintegration, and stumble over equal protection analysis?

In the final analysis, the Court suggests that Amendment 2 is unconstitutional because it exhibits "animus" toward homosexuals and bisexuals. However, no one, not even the Court, argues that Amendment 2 authorizes a witchhunt against homosexuals, or even permits government to spy into their bedrooms. Rather, the only "animus" exhibited is the moral disapprobation expressed toward homosexual conduct and lifestyles. Why should such disapprobation raise, in the Court's eyes, a constitutional issue?

Here, we would do well to recall that Justice Anthony Kennedy, the author of Romer, was also one of the authors of the infamous plurality opinion in Planned Parenthood v. Casey. In Casey, which reaffirmed the abortion license manufactured by the Court in Roe v. Wade, the plurality purported to find a constitutional "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." It went on to say "[b]eliefs about these matters" define "the attributes of personhood." In Romer, the Court says the Constitution requires "the law's neutrality where the rights of persons are at stake." (Emphasis added.) Thus, when Romer and Casey are read together, the Court comes very close to saying that society is unable Constitutionally to disapprove conduct--including abortion and homosexuality--that springs from how one has chosen to define the meaning of life. Though such a concept would be limitless and would undermine itself, it is fair to say that the current Court seems intoxicated with individual "choice", even if the majority of one's fellow citizens finds one's chosen behavior to be destructive of the moral environment of a healthy society. Has the Court forgotten--indeed, does it implicitly deny--the legitimate authority of state government to employ its "police power" to protect public morals as well as public health, safety, and welfare?

What is perhaps most troubling about Romer is the Court's willingness, indeed, eagerness, to take sides in the culture war. Here we see a terrible implication for the political life of this country. The Court appears to have decided that it is the proper arbiter of moral disputes. In doing so, it throws out the window one of the sure guarantors of our liberty

--the principle of self-government. To put it simply, on matters of sexual morality and other issues of moral import on which elite and popular opinion are in conflict, the Court does not trust the people or the political process. The justices are prepared to enforce elite views by pure fiat.

What are we to do about such judges? Impeachment is sometimes mentioned, but remains impractical. It appears that our best hope continues to be the notoriously fallible strategy of working to ensure the appointment of justices and judges who respect the constitutional limits of their own authority. At the same time, we would do well to reflect upon the limits to tolerance: If the tolerance and goodwill shown by American citizens in legislatively repealing anti-sodomy laws is to be seized upon by the Supreme Court as an excuse to raise homosexuality to protected status, perhaps such conduct should not be de-criminalized in the first place. It has been remarked by Chuck Colson that even good men and women, who would make fundamentally sound justices, are often corrupted by the "inside the beltway" crowd. Journalists, academics and other elites have become adept at offering acceptance and, indeed, plaudits to judges and other officials prepared to purchase that approbation by "growing" out of principles which the vast majority of elites consider unenlightened. Perhaps the way partially to immunize a vulnerable Supreme Court against such seduction is to move it to Peoria, El Paso or, better yet, Russell, Kansas.

Robert George is associate professor of politics at Princeton University. Bill Saunders is a civil rights attorney in Washington, D.C.