Romer V. Evans and Democracy's Domain

Vanderbilt Law Review

Volume 50 Issue 2 Issue 2 - Symposium: Defining Article 6 Democracy for the Next Century

3-1997

Romer v. Evans and Democracy's Domain

Jane S. Schacter

Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr

Part of the Civil Rights and Discrimination Commons

Recommended Citation Jane S. Schacter, Romer v. Evans and Democracy's Domain, 50 Vanderbilt Law Review 361 (1997) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol50/iss2/6

This Symposium is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Romer v. Evans and Democracy's Domain

Jane S. Schacter*

I. INTRODUCTION ...... 362 II. AMENDMENT 2 AND ITS BACKGROUND ...... 365 A. Amendment 2 in Context: The Characterof Gay Inequality ...... 366 B. Contested Remedies: Gay Civil Rights Laws, Anti-Gay-Rights Initiatives, and the Passage of Amendment 2 ...... 371 C. The Romer Litigation...... 374 D. The Romer Majority Opinion...... 376 1. The Sweep of Amendment 2: "Ordinary Civic Life"...... 376 2. Caste and the Unequal Protection of the Law s ...... 377 3. Animus and Irrationality ...... 379 4. Rejecting "Special Rights" ...... 381 5. Weaving the Pieces Together ...... 382 E. The Romer Dissent...... 383 III. Two STANDARD AcCOuNTs OF DEMOCRATIC EQUALITY .... 389 A. ConstitutionalBrakes and ProcessPerfection ...... 389 B. Romer as a ConstitutionalBrake on Democracy?. 391 C. Romer as Process Perfection?...... 395 IV. A DIFFERENT DIRECTION: EXPANDING DEMOCRACY'S D OM AIN ...... 398

* Associate Professor, University of Wisconsin Law School. I am grateful to Juliet Brodie and Kathleen Sullivan for helpful comments on an earlier draft; to Kim Epstein and Dan Lipson for excellent research assistance; and to Michael Morgalla for help in locating materials. Thanks as well to this Symposium's organizers and participants. This research was supported by a summer research grant from the University of Wisconsin Law School. 361 VANDERBILT LAW REVIEW [Vol. 50:361

I. INTRODUCTION

As we gather at this Symposium to probe the definition of democracy in the coming century, it seems fitting to note that we are continuing a very old political conversation rather than initiating a new one. The meaning of democracy has long been contested.1 One of the most vexing aspects of the debate has always centered on whether and how to limit the majority's prerogative to act in ways that disad- vantage minorities. 2 Viewed from a different angle, the question is how to configure the relationship between majority preferences and equality norms. It is the basic dilemma of democratic equality: What kind and measure of equality does democracy require? Formal political equality alone? Social, economic, or cultural equality as an aspect of political equality? On what basis? Although a topic of lively debate among political theorists, these questions by no means constitute a purely academic exercise. Constitutional law regularly enters this debate as courts confront laws that reflect, create, or entrench social inequality, by which I mean group-based social subordination, stigmatization, or disadvan- tage. When courts decide whether majoritarian laws of this kind violate constitutional equality norms, judges necessarily-if only tacitly-join the enterprise of negotiating the relationship between democracy and social equality. Cases involving a range of constitutional provisions might be understood to pit democracy and social equality against one another, 3 though none quite as conspicuously as equal protection cases. At least since the appearance of the famous footnote four in United States v. Carolene Products Co., 4 the intersec- tion of democracy and social equality has been a controversial one in

1. See generally Philip