Romer v. Evans

  • September 18, 2014
    Guest Post

    by Adam Winkler, Professor Law, UCLA School of Law. This post is part of our 2014 Constitution Day symposium.

    In 1961, Yale Law School professor Alexander Bickel wrote a law review article extolling what he called the “passive virtues” of judicial decision-making. By this, Bickel meant that the Supreme Court might achieve better, more enduring results if instead of boldly asserting a constitutional vision the justices took small, narrow steps. He didn’t mean that the Court should stay away from controversial issues so much as lead the nation in a dialogue, venturing in on occasion to articulate important principles but allowing issues to percolate over time.

    In an era where the Supreme Court is known for its aggressive assertions of power, most notoriously in deciding a presidential election in Bush v. Gore, it may be hard to take seriously any notion of a passive or tentative Court. In recent years, some liberal scholars such as Cass Sunstein have promoted judicial minimalism, though mostly one suspects because of the conservative makeup of the Rehnquist and Roberts Courts. Yet if there is one area where the Court has seemed to follow Bickel’s lead, it is LGBT rights and, in particular, marriage equality.

    Consider that the Court has ruled on the constitutionality of laws discriminating or harming LGBT people in three major cases over the past twenty years: Romer v. Evans, striking down Colorado’s statewide ban on local anti-discrimination ordinances; Lawrence v. Texas, voiding bans on same-sex sexual relationships; and United States v. Windsor, invalidating the federal Defense of Marriage Act. These cases have been celebrated for expanding the constitutional promise of equal citizenship to LGBT people. And the justices have been criticized, too, for not going far enough. Romer refused to say that sexual orientation was a suspect classification triggering heightened scrutiny. Lawrence refused even to say that same-sex sexual activity was a fundamental right. Windsor was decided the same day as Hollingsworth v. Perry, where the Court used procedural issues to avoid ruling directly on the constitutionality of bans on same-sex marriage. 

    Such criticism is certainly appropriate given that the Court’s half-steps leave LGBT people in limbo. After Romer and Lawrence, federal courts continued to uphold other laws discriminating against LGBT people, such as bans on adoption. Windsor and Hollingsworth literally left LGBT people in loving relationships at the altar, still unable to marry in the majority of states. This state of affairs must be changed and soon. For many, rights delayed are rights denied.

  • December 20, 2012
    Guest Post

    by Dan Urman, Director of Northeastern University’s Doctorate in Law and Policy. Urman is also a member of the ACS Boston Steering Committee.

    On Dec. 12, as part of the ACS Boston Lawyer Chapter’s “Legal Legends in the Law” series, Laurence Tribe reflected on his remarkable career as a constitutional law professor and Supreme Court litigator.  Tribe, Carl Loeb University Professor at Harvard University, began by providing an overview of the Supreme Court’s decision to hear two cases related to marriage equality: Windsor v. U.S. and Hollingsworth v. Perry. Disagreeing with popular news reports already predicting the outcome, Tribe argued that more than one justice is uncertain about how he or she will vote.

    Tribe (pictured) has decades of experience writing, teaching, and litigating constitutional rights for gay and lesbian Americans, often at his professional peril. He referenced his discussion of sexual orientation in his 1978 Treatise, American Constitutional Law, taking a stance well outside of the legal and social “mainstream.”  \Tribe argued that laws discriminating against individuals based on sexual orientation were “indistinguishable from laws discriminating against individuals based on their race or gender.”  Many friends and colleagues advised him against taking such a position publicly, because it could cost him a position on the U.S. Supreme Court. These warnings resurfaced when he prepared to testify against Judge Robert Bork’s 1987 Supreme Court nomination. Senator Alan Simpson (R-Wyo.) told Professor Tribe that it would be great to see “both of them (Bork and Tribe) on the Court,” and if Tribe testified against Bork, he would be “burning a bridge.”  Twenty-five years later, Tribe said that if serving on the Court meant holding back his actual views, it was a bridge he did not want to cross. 

  • June 5, 2012

    by Jeremy Leaming

    The movement for marriage equality, part of a much more expansive effort to advance equality for the LGBT community, avoided a setback as a federal appeals court in San Francisco refused to reconsider its ruling from earlier in the year that invalidated California’s anti-gay measure Proposition 8.

    Proponents of Proposition 8, which barred same-sex marriages in the state, had urged the entire U.S. Court of Appeals for Ninth Circuit to review and reverse a three-judge panel’s February ruling. But a majority of the Circuit’s judges voted against reconsideration, the Los Angeles Times reported.

    In February, the Ninth Circuit panel ruled 2-1 that Proposition 8 “served no purpose and no effect, other than to lessen the status and human dignity of gays and lesbians.” Writing for the majority in Perry v. Brown, Ninth Circuit Judge Stephen Reinhardt said, “Proposition 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them, while leaving in place all their other rights and responsibilities as partners – rights and responsibilities that are identical of those married spouses and form an integral part of the marriage relationship.”     

    Today, three of the Ninth Circuit’s judges lodged a dissent saying the full Circuit should have reviewed the panel’s opinion. The dissenters accused their colleagues of muzzling “respectful conversation” of same-sex marriage. “Even worse,” they continued, “we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.”

    In its February opinion, Reinhardt (pictured) cited the Supreme Court’s Romer v. Evans opinion that invalidated Colorado’s effort to use state law to marginalize a group of people, namely gay men and lesbians. Reinhardt noted that in Romer, the high court said Colorado’s constitutional amendment preventing localities from implementing laws protecting lesbians and gay men from discrimination undermined equal protection principles, saying that it was “not within our constitutional tradition to enact laws of this sort,” which targets “a certain class of citizens for disfavored legal status.”

    Reinhardt also lamented the impact of Proposition 8, which yanked marriage equality rights from same-sex couples not long after the California Supreme Court ruled that the state’s constitution granted them the right to wed.

  • February 8, 2012

    by Jeremy Leaming

    As noted here yesterday Ninth Circuit Court of Appeals Judge Stephen Reinhardt wrote in Perry v. Brown that the state of California had no reason to strip from lesbians and gay men the right to wed. It was a classification of a group of people for apparently hostile reasons that doomed the rabidly anti-gay ballot measure, Proposition 8.

    The writer and law professor Garrett Epps provides for The American Prospect, not surprisingly, a clearer understanding of Reinhardt’s opinion, which many pundits suggest could, if not likely, reach the Supreme Court.

    Epps notes that Reinhardt (pictured) is a “last great liberal lion of a once-numerous pride,” who has authored “dozens of decisions that embody old-style judicial liberalism (including one that terminally ill individuals have a right to seek medical assistance in suicide).”

    But in this case that lion, Epps says, has crafted an opinion that may have a longer “shelf-life” than many of his other decisions. For the opinion, did not sweepingly find that gays have a fundamental right to marry. As ACSblog noted, Reinhardt was focused on the targeting of a group of people for ill treatment, rather like the matter that resulted in the Supreme Court’s 1996 opinion in Romer v. Evans, where Justice Anthony Kennedy led a majority in finding unconstitutional Colorado’s noxious Amendment 2, a voter passed measure altering the state constitution to prohibit localities from enacting policy protecting lesbians and gay men from discrimination.

    Epps says in his latest opinion, Reinhardt may have been itching to roar – “to say something broader about human dignity and the essential worth of gays and lesbians.”