Bench Memos

This Day in Liberal Judicial Activism—May 20

1996—What’s one way to deal with unhelpful precedent?  Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does.  In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal.  A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing special protections upon those engaged in homosexual conduct.  Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause.  (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having  seriously eroded Bowers.)  Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.” 

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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