William & Mary Bill of Rights Journal Volume 6 (1997-1998) Issue 1 Article 3 December 1997 Romer v. Evans and Invidious Intent Andrew Koppelman
[email protected] Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, and the Fourteenth Amendment Commons Repository Citation Andrew Koppelman, Romer v. Evans and Invidious Intent, 6 Wm. & Mary Bill Rts. J. 89 (1997), https://scholarship.law.wm.edu/wmborj/vol6/iss1/3 Copyright c 1997 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj SYMPOSIUM: ROMER v. EVANS* ROMER v. EVANS AND INVIDIOUS INTENT Andrew Koppelman'" In this Essay, ProfessorKoppelman argues that, notwithstanding numerous scholarly claims to the contrary, the Supreme Court's decision in Romer v. Evans was based on the invalidated law's impermissible purpose. ProfessorKoppelman examines the Court's understanding of the Fourteenth Amendment, and concludes that its current doctrine is designed to ferret out unconstitutional intent. Such impermissible intent, Koppelman argues, was evident in the law challenged in Romer. Nonetheless, Koppelman acknowledges, Romer is a hard case, and its precedentialsignificance is unclear, particularly in light of Bowers v. Hardwick, which upheld the constitutionality of laws against homosexual sodomy. Laws that facially disadvantage gays, he argues, will always reflect both impermissible prejudice and permissible moral judge- ments. I. INTRODUCTION Laws that discriminate against gays will always be demonstrably rational, because such laws will always further the state's legitimate moral objection to homosexual sodomy. Thus teaches Bowers v.