Thought Experiment: What if Kennedy Had Approached Romer v. Evans the Way He Approached Schuette v. BAMN?

The man; the enigma.

The man; the enigma.

In 1996, Justice Kennedy authored a bold—perhaps even revolutionary—opinion protecting the rights of minorities under the Equal Protection Clause.  In 2014, Justice Kennedy authored yet another major equal protection decision, but this time refusing to protect minority interests.  This despite the undeniable factual and legal similarities between the two cases.

The former opinion is Romer v. Evans; the latter, Schuette v. BAMN.

As you will recall, the law at issue in Romer was an amendment to the state constitution of Colorado (“Amendment 2”), enacted by popular vote, repealing and prohibiting future adoption of measures designed to protect the interests of sexual minorities (in particular, antidiscrimination laws).

Similarly, the law at issue in Schuette was an amendment to the state constitution of Michigan (“Proposal 2”), enacted by popular vote, repealing and prohibiting future adoption of measures designed to protect the interests of racial minorities (in particular, race-conscious admissions policies in state-run institutions of higher education).

Yet, despite these obvious factual similarities, Kennedy reached opposite outcomes in the two cases. In Romer, Kennedy concluded that the bare purpose of Amendment 2 was to make it more difficult for sexual minorities (and their political allies) to enact measures to protect the interests of that minority. In essence, the purpose of Amendment 2 was to exclude sexual minorities from accessing political remedies that were freely available to others. The same reasoning would seem to apply to Proposal 2, challenged in Schuette, because Proposal 2 similarly excludes racial minorities (and their political allies) from accessing political remedies available to others.

Further, under a traditional equal protection approach, the Court should have been even more concerned in Schuette because the subject matter of Proposal 2 was race. While sexual orientation has never been deemed a suspect classification worthy of heightened judicial scrutiny, race is the paradigmatic suspect classification—its use in law always triggers suspicion of impermissible motives such that laws relying on race classifications are always subjected to the most demanding level of judicial oversight. Or at least that was the state of the law prior to Schuette. But, as we know, Justice Kennedy was somehow able to conclude that Michigan’s Proposal 2 was not about race, and thereby avoided applying strict scrutiny in reviewing the propriety of the law.

Given the divergent results in these two cases, one might draw the conclusion that the current Court is, oddly enough, more solicitous of the rights of sexual minorities than of racial minorities.  On the one hand, this is counterintuitive given the historical origins of the Equal Protection Clause and the special place of race discrimination in the Court’s equal protection jurisprudence.  On the other hand, there is a palpable sense in the Court’s rhetoric and reasoning that race discrimination is “old” while sexual orientation discrimination is “new.”  There is a sense that at least some members of the Court are ready for race discrimination to be “over”—a yearning to finally proclaim the recaptured innocence of White America.  It is somehow easier to confess that we, or some of us, are still captive to homophobia, but in a state of evolution, led by visionary judicial leaders like Justice Kennedy.

Another, related, way of looking at the divergence is less as being motivated by the identity of the targeted group and more about the form of discrimination.  For a number of reasons, sexual orientation discrimination still takes on blunt, “first generation” forms.  Sexual minorities are called out by name (i.e., laws targeting sexual minorities rely on facially discriminatory classifications) and laws targeting sexual minorities are often accompanied by overtly homophobic rhetoric.  By contrast, racial discrimination today is enacted by facially neutral policies and everyone is too careful, most of the time, to speak racism out loud.  Race discrimination today is enacted through “second generation” forms.

So one way to understand Romer versus Schuette is that the Court is good at identifying and protecting against first generation discrimination, not so much with second generation discrimination.

Still, at the end of the day, it is difficult to escape the conclusion that the only difference between Romer and Schuette is the identity of the minority group being harmed.

With that introduction, I offer a Romer-Schuette mash-up. The facts are taken from Romer; the reasoning and rhetoric from Schuette.  I contend that the end product is virtually seamless.


Romer as Schuette

The Court in this case must determine whether an amendment to the Constitution of the State of Colorado, approved and enacted by its voters, is invalid under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

The enactment challenged in this case is an amendment to the Constitution of the State of Colorado, adopted in a state-wide referendum. The parties and the state courts refer to it as ‘‘Amendment 2,’’ its designation when submitted to the voters. The impetus for the amendment and the contentious campaign that preceded its adoption came in large part from ordinances that had been passed in various Colorado municipalities. For example, the cities of Aspen and Denver each had enacted ordinances which banned discrimination in many transactions and activities, including housing, employment, education, public accommodations, and health and welfare services. What gave rise to the state-wide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation.

Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of ‘‘homosexual, lesbian or bisexual orientation, conduct, practices or relationships.’’ The amendment reads:

No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

Before the Court addresses the question presented, it is important to note what this case is not about. It is not about the constitutionality, or the merits, of discrimination on the basis of sexual orientation. Discrimination on the basis of sexual orientation presents complex questions not implicated here. The question here concerns not the permissibility of sexual orientation discrimination but whether, and in what manner, voters in the States may choose to prohibit the consideration of sexual orientation in governmental decisions, in particular with respect to antidiscrimination laws.

By adding Amendment 2 to their State Constitution, the Colorado voters exercised their privilege to enact laws as a basic exercise of their democratic power. In the federal system States “respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times.” Colorado voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting antidiscrimination protection on the basis of sexual orientation—a question that raises difficult and delicate issues.

The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power. Our constitutional system embraces the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.

Here Colorado voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of sexual orientation discrimination in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity.

Were the Court to rule that the question addressed by Colorado voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by elected officials, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common.

It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.

The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy.

One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale [sic] deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues.

It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.

What is at stake here is not whether injury will be inflicted but whether government can be instructed not to follow a course that entails extending already expansive antidiscrimination protection to sexual orientation. The electorate’s instruction to governmental entities not to embark upon the course of protections for sexual orientation was adopted, we must assume, because the voters deemed such protections to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities that this Nation seeks to put behind it.

Whether those adverse results would follow is, and should be, the subject of debate. Voters might likewise consider, after debate and reflection, that laws designed to protect sexual minorities—consistent with the Constitution—are a necessary part of progress to transcend the stigma of past sexual orientation discrimination.

This case is not about how the debate about sexual orientation discrimination should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Colorado’s laws that commit this policy determination to the voters.

Deliberative debate on sensitive issues such as sexual orientation discrimination all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.


7 responses to “Thought Experiment: What if Kennedy Had Approached Romer v. Evans the Way He Approached Schuette v. BAMN?

  1. Thank you so much for this. Romer and Schuette are not only factually related, but doctrinally related as the CO Supreme Court relied on the Hunter/Seattle Doctrine to overturn Amendment 2 in much the same way the 6th Circuit did in Schuette. In both cases Kennedy ignored and perverted the doctrine in favor of these oposing and unprincipled rhetorical stances.

    • Thanks so much for your comment and making that connection to the CO Supreme Court’s reasoning. Kennedy’s approach to identifying political interests and injury under this octane is disturbingly essentialist. I think back to the fact that the EPC was originally intended to protect both emancipated African Americans and their political allies (per Eugene Gressman’s “The Unhappy Hitory of Civil Rights Legislation”). Identity is not just about essential identity, but about power, group mobilization, and access to resources–all clearly implicated by Proposal 2.

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  3. Unbelievable. The author doesn’t see a difference between blocking antidiscrimination laws and blocking “race-conscious” – AKA racist – policies?

    • Hi Brad – thanks for commenting. I think there are differences between anti-discrimination laws and race-conscious admissions policies and those differences (as well as the similarities) are worth exploring. But part of my problem with Kennedy’s approach is that he did not engage in that analysis.

  4. I think that if Romer had the correct outcome, Schuette had the wrong outcome (in large part because the CO Supreme Court relied on Hunter/Seattle, which J. Kennedy dismissed–and should have done so here). But I’m not convinced Romer was “right.” Anyway, perhaps the distinction–and only distinction–between Romer/Schuette which could possibly justify the otherwise flatly inconsistent outcomes is by looking at what the Court danced around in its opinion; i.e., the nature of the right being withheld by the Colorado and Michigan amendments. In Romer, the CO. amendment withheld the right to seek protection from discrimination–i.e., the right to seek enactment of negative laws that prohibit discrimination. In contrast, the Michigan amendment withholds a “right” to race-based admissions in public schools and concerns ONLY the use of race for government purposes, as opposed to the use of sexual orientation for regulating private conduct. While the MI amendment does MUCH more than withhold a right to race-based admissions, the Court’s opinion was narrow. Hunter/Seattle’s application was the only thing decided (see opinion of J. Breyer–political process not withheld). An equal protection challenge to the Michigan amendment could be successful because of the exceptions within the amendment… see, Gratz (quota); cf. MI amendment’s exception creating floor and ceiling established for the use of race-based admissions in order to receive federal funding while leaving gender to more deferential treatment–indicating that race was singled out (which could not have been done without “animus,” see Romer). I wrote about an equal protection challenge on the MI amendment in a law school class this past fall and while there are some obstacles, they can be overcome under strict scrutiny and distinguishing cases used to defend the amendment–particularly Romer.

    • Thanks for you comment, Mark. Very interesting points. I absolutely agree that the distinction between the two laws, including the two types of rights at issue, provides the best argument for treating Romer and Schuette differently. At the end of the day, I think it is a distinction without a difference–at least under the political process framework. Although they laws operate differently, they both name and target the interests of particular groups, and should be evaluated accordingly. What is interesting to me is that Kennedy did not even pick the issue up. It might have helped if he had read your paper!

      is the best grounds for distinguishing the two cases, although I ultimately disagree with that distinction and disagree that it matters in terms of how the cases should have turned out. But at a m

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