THE MISSING PAGES OF THE MAJORITY OPINION IN ROMER V. EVANS LYNN A. BAKER* My initial reaction last May to the Supreme Court's decision in Romer v. Evans' was deeply ambivalent. I wholeheartedly support the efforts of gay men, lesbians, and bisexuals to eradi- cate all forms of discrimination on the basis of sexual orientation. And, had I been a Colorado resident in 1992, I surely would have voted against Amendment 2.2 I therefore found it easy to applaud the outcome in Romer. At the same time, however, I was troubled by the Court's opinion. I have devoted a significant portion of my academic career to defending the institution of direct democracy through which Amendment 2 was adopted,3 and to explaining the impor- * Professor, University of Arizona College of Law; Visiting Professor (Fall 1996), University of Texas School of Law; Visiting Professor (Spring 1997), Rutgers University Law School, Camden; Adjunct Professor (Spring 1997), Columbia University Law School; J.D., Yale University, 1985; B.A., Oxford University, 1982; B.A., Yale University, 1978. This essay was prepared for the Fifth Annual Ira C. Rothgerber, Jr., Conference on Constitutional Law, "Gay Rights and the Courts: The Amendment 2 Controversy," held at the University of Colorado School of Law, Byron R. White Center for American Constitutional Law, on October 4, 1996. I am grateful to Dean Hal Bruff, White Center Director Paul Campos, and the Colorado law faculty for providing a stimulating and enjoyable environment for intellectual exchange. Michael Churgin, Susan Klein, Andy Koppelman, and Christopher Meyer offered useful comments on an earlier draft. University of Texas law librarians Corrin Gee and David Gunn provided valuable research assistance. As always, conversations with Samuel Dinkin made this essay better and made writing it more fun. 1. 116 S. Ct. 1620 (1996). 2. Amendment 2 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. COLO. CONST. art. II, § 30b. 3. See, e.g., Lynn A. Baker, ConstitutionalChange and Direct Democracy, 66 U. COLO. L. REV. 143 (1995) (Symposium, Governing by Initiative); Lynn A. Baker, Direct Democracy and Discrimination:A Public Choice Perspective, 67 CHI.-KENT L. REV. 707 (1991) (Symposium, Law and Economics of Local Government); Lynn A. 388 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 68 tance of preserving opportunities for interstate diversity in areas of significant moral disagreement within our society such as "gay rights" and "traditional family values."4 I was not sure I could reconcile my carefully considered scholarly positions with the Romer Court's analysis. Moreover, the majority's opinion was, by the current Court's standards, so brief as to lend disturbing credence to the dissent's claim that the majority was simply "imposing upon all Ameri- cans" its elite view that "'animosity' toward homosexuality ... is evil."5 After all, a majority of the current Court had needed fifteen pages in the Supreme Court Reporter to set forth its interpretation of the Eleventh Amendment in Seminole Tribe v. Florida,' and had taken fully twenty-seven pages to find state- imposed limits on congressional terms unconstitutional in U.S. Term Limits, Inc. v. Thornton.7 The majority in Romer, in contrast, required only six-and-one-half pages to establish the unconstitutionality of a law that it acknowledged was "unprece- dented in [American] jurisprudence."' In its brevity, Romer was eerily reminiscent of Bowers v. Hardwick one decade earlier, in which a majority of the Court had taken a similarly scant four- and-one-half pages in order to present the contrary view that "a majority of the electorate" may legitimately proclaim that 9 "homosexual sodomy is immoral and unacceptable." In the months that have passed since the Romer Court issued its opinion, my initial ambivalence has dissipated. I am today of Baker, "They the People" A Comment on U.S. Term Limits, Inc. v. Thornton, 38 ARiz. L. REV. 859 (1996) (Symposium, Major Issues in Federalism). 4. See, e.g., Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911 (1995) [hereinafter Baker, ConditionalFederal Spending]; Lynn A. Baker & Samuel H. Dinkin, The Senate.- An Institution Whose Time Has Gone?, 13 J.L. & POL. (forthcoming 1997). 5. 116 S. Ct. at 1629 (Scalia, J., dissenting). 6. 116 S.Ct. 1114, 1119-33 (1996). 7. 115 S. Ct. 1842, 1845-71 (1995). 8. 116 S. Ct. at 1628. [Amendment 2's] disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; "[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." Id. (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)) (emphasis added). 9. Bowers v. Hardwick, 478 U.S. 186, 196 (1986). The majority opinion in Bowers occupied pages 2842 to 2847 of the Supreme Court Reporter. 19971 THE MISSING PAGES OF ROMER V. EVANS 389 the view that the majority reached the right result, but for reasons that it articulated only partially or not at all. In the remainder of this essay, I will therefore undertake to provide what I believe to be important missing pages of the majority opinion in Romer v. Evans. Two gaps, in particular, require filling. The first is the majority's failure to acknowledge Bowers and to respond to the dissent's arguments that Bowers logically requires that Amendment 2 be sustained. The second is the failure of both the majority and the dissent to discuss the implications for the constitutionality of Amendment 2 of the state's near plenary power over its political subdivisions. I. BOWERS V. HARDWICK AND THE ARGUMENT THAT "THE GREATER INCLUDES THE LESSER" For many, the most surprising aspect of the majority opinion in Romer was surely the absence of any discussion of-or, indeed, citation to-the Court's 1986 decision in Bowers v. Hardwick."° In Bowers, the Court held that the U.S. Constitution does not include "a fundamental right to engage in [consensual] homosex- ual sodomy"'" and, therefore, that the states are free to outlaw such conduct. 2 It thus seemed inevitable that the Romer Court would need to discuss Bowers-perhaps even explicitly to overrule it-if a majority of the Justices were to find Colorado's Amend- ment 2 unconstitutional. In the words of Justice Scalia, dissent- ing in Romer, "If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring 1 3 homosexual conduct." Such arguments that a "greater" governmental power includes a "lesser" one have been a part of American jurispru- dence at least since the time of Justice Holmes. 4 And they are 10. 478 U.S. 186 (i986). 11. Id. at 191-92. 12. See id. at 191-93. 1.3.Romer, 116 S.Ct. at 1631 (Scalia, J., dissenting). 14. Justice Holmes' advocacy of such arguments began while he was a member of the Supreme Judicial Court of Massachusetts, see, e.g., Commonwealth v. Davis, 39 N.E. 113, 113 (1895) ("[T]he legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the less [sic] step of limiting the public use to certain purposes.'), aff'd, 167 U.S. 43 (1897), and continued throughout his tenure on the United States Supreme Court, 390 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 68 today so central to the jurisprudence of Chief Justice Rehnquist that they arguably constitute a freestanding doctrine of American constitutional law.15 (I recently had the opportunity to ask the see, e.g., Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 602 (1926) (Holmes, J., dissenting) ("'[Tihe power to exclude altogether generally includes the lesser power to condition."') (quoting Packard v. Banton, 264 U.S. 140, 145 (1923)); City and County of Denver v. Denver Union Water Co., 246 U.S. 178, 196 (1918) (Holmes, J., dissenting) ("In view of that right of the City [to order the Water Company to remove its pipes from the streets], which, if exercised, would make the Company's whole plant valueless as such, the question recurs whether the fixing of any rate by the City could be said to confiscate property on the ground that the return was too low."); Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 519 (1917) (Holmes, J., dissenting) ("[T]he measure of a condition is the consequence of a breach, and if that consequence is one that the owner may impose unconditionally, he may impose it conditionally upon a certain event .. "); Western Union Tel. Co. v. Kansas, 216 U.S. 1, 53 (1910) (Holmes, J., dissenting) ("If the State may prohibit, it may prohibit with the privilege of avoiding the prohibition in a certain way."). The argument made its first appearance in a U.S. Supreme Court opinion in Doyle v. Continental Ins.