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 a protected status on homosexual orientation, conduct, practices, and relationships. 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.”
2008—A Ninth Circuit panel rules (in Witt v. Department of the Air Force) that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” statute governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.” Despite relevant Supreme Court precedent, the panel somehow fails even to consider whether the military context calls for a lower standard of scrutiny.
More evidence of the panel’s sloppiness is provided by its assertion that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.” In fact, Justice Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that supposedly cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer.
2008—A divided Fourth Circuit panel rules (in Richmond Medical Center for Women v. Herring) that a Virginia statute that outlaws partial-birth abortion “imposes an undue burden on a woman’s right to obtain an abortion” and therefore violates the federal Constitution (as misinterpreted by the Supreme Court). In the aftermath of the Court’s ruling in Gonzales v. Carhart (2007) rejecting a facial challenge to the federal ban on partial-birth abortion, the majority opinion by Judge Blane Michael, joined by fellow Clinton appointee Diana Gribbon Motz, purports to distinguish the statute’s intent element from the intent element in the federal ban. Judge Paul Niemeyer dissents.
The Fourth Circuit will grant en banc review in the case and in October 2008, in a majority opinion by Niemeyer, will reject the facial challenge to the Virginia statute by a vote of 6 to 5.
2014—In a stark display of the Jacobin temperament that underlies his opinion striking down Pennsylvania’s marriage laws, federal district judge John E. Jones III (a Bush 43 appointee) declares that “it is time to discard [the laws] into the ash heap of history.”