Attainder and Amendment 2: Romer's rightness.
Author | Amar, Akhil Reed |
[T]he principle underlying the Court's opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged "equal protection" violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.
- Justice Antonin Scalia, dissenting in Romer v. Evans(1)
Call me silly. In fact, call me terminally silly. For despite Justice Scalia's remarkably confident claim, I believe, and shall try to prove below, that the Romer Court majority opinion invalidating Colorado's Amendment 2 was right both in form and in substance, both logically and sociologically. I stress "form" and "logic" at the outset because I share Justice Scalia's belief in the importance of these things in constitutional adjudication. I also share his commitment to constitutional text, history, and structure, and his suspicion of "free-form" constitutionalism.(2) And so I shall highlight the text, history, and spirit of a constitutional clause that - though not explicitly invoked by the Romer majority - clarifies and supports the majority's theory: the Article I, section 10 Attainder Clause.(3) My claim is not that the Equal Protection Clause, relied upon by the Romer Court, was incapable of doing the work; but that the sociology and principles underlying the Attainder Clause powerfully illuminate the facts of Romer, the opinions in Romer, and the spirit of the Equal Protection Clause itself.(4)
I.
In Romer, the United States Supreme Court struck down the following words - which had been adopted by a 1992 statewide referendum as an amendment to the Colorado Constitution - as unconstitutional on their face:
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.(5)
Justice Kennedy wrote for a six-justice majority. Justice Scalia (joined by Chief Justice Rehnquist and Justice Thomas) let fly a stinging dissent.
Since Romer came down, I have had many conversations about it with law professors and law students across the country. The initial consensus seems to be that while Justice Kennedy's language soared, Justice Scalia's logic held. Justice Kennedy won their hearts; Justice Scalia, their heads.
I must confess that before I read Justice Kennedy's opinion - which builds in part on an evocative amicus brief submitted by Laurence Tribe, John Hart Ely, Gerald Gunther, Philip Kurland, and Kathleen Sullivan(6) - I too had great difficulty in seeing how the Colorado referendum was unconstitutional. I reasoned as follows:
It is hard to see how, under existing equal protection doctrine, a simple declaration that "sexual orientation is not just like race" is unconstitutional. To be sure, a strong argument can be made that sexual orientation discrimination is like - indeed is itself a form of - sex discrimination.(7) But the Supreme Court has yet to see this light; and in any event, it has long treated sex discrimination differently from race discrimination. In doctrinal jargon, race discrimination requires "strict scrutiny" while sex discrimination generates "intermediate scrutiny."(8) And so if the declaration "sex and sexual orientation discrimination are different from race discrimination" is unconstitutional under Supreme Court equal protection doctrine, then the Constitution itself - as construed by the Supreme Court - is unconstitutional. And that idea is silly. Terminally.
Thus, if Colorado's cities had never adopted ordinances requiring courts, in effect, to give strict scrutiny to sexual orientation discrimination, that failure to treat sexual orientation exactly like race would not have been unconstitutional under Supreme Court equal protection doctrine.(9) But surely if Denver, Aspen, and Boulder do enact ordinances treating sexual orientation like race for antidiscrimination purposes, these cities are not forever barred from later repealing these ordinances. Repeal here is a kind of state action, but not an unconstitutional kind. The Constitution does not require that "special" antidiscrimination rights, once extended, irrevocably vest via some magic and antidemocratic one-way ratchet. And if Denver, Aspen, and Boulder can repeal these ordinances, presumably the Colorado legislature can repeal them by statute; and so too the people of Colorado can repeal them by state constitutional amendment (via initiative or referendum). To think otherwise is terminally silly.(10)
To be sure, Colorado's Amendment 2 "entrenches" its No Strict Scrutiny For Sexual Orientation Discrimination Rule in the sense that opponents of the stingy rule can now prevail only by passing a new constitutional amendment rather than a local ordinance or a state statute. Passing a new constitutional amendment is of course an onerous task. But all constitutional provisions entrench in this sense. The Strict Scrutiny For Race Discrimination Rule in the Fourteenth Amendment, as construed by the Supreme Court, itself entrenches in just this way. Opponents of this federal rule can now prevail only by passing a new federal constitutional amendment (rather than a state law or congressional statute). And, of course, it is notoriously tough to pass a new federal constitutional amendment. But surely that entrenchment does not make the Fourteenth Amendment itself unconstitutional. To think it does would be terminally silly.
The Denver, Aspen, and Boulder ordinances repealed by Amendment 2, however, did more than prohibit government from discriminating on the basis of orientation. The ordinances also prohibited certain forms of private discrimination - in employment and in housing, for example. But surely the cities were not constitutionally obliged to pass these private discrimination codes. The federal Constitution generally does not require that the government prohibit private discrimination. If it did, the "state action" requirement of the Equal Protection Clause - which bans government discrimination but not private discrimination - would itself be unconstitutional. And that idea would be - well, you get the point. For the reasons we have already seen, repeal is no different from failure to enact; and neither is repeal by dint of an "entrenching" constitutional amendment.
II.
How did Justice Kennedy's majority opinion deal with all this? Largely by side-stepping it through a more careful reading of Amendment 2, in a formal and textual analysis that should have commanded the respect, if not the assent, of a principled formalist/textualist like Justice Scalia. Beyond this formal and textual analysis - which paid the Colorado electorate the high compliment of taking their words seriously - Justice Kennedy's opinion showed remarkable sensitivity to the mean purpose and dark social meaning lurking beneath these words.
Amendment 2, Justice Kennedy argued, did not merely declare that sexual orientation is not like race. Strictly speaking, it did not address sexual orientation per se. Rather, it explicitly singled out for disfavored treatment "homosexual, lesbian [and] bisexual orientation." Twice the Amendment used these words, once in its caption. Under Amendment 2, heterosexuals could win local ordinances and state laws protecting themselves from being discriminated against on the basis of their sexual orientation, but nonheteros could not win symmetric ordinances and laws. This point is not purely theoretical but palpably real. Amendment 2 did not repeal Denver's, Aspen's, and Boulder's ordinances in toto, but only insofar as these ordinances protected homosexuals, lesbians, and bisexuals from orientation discrimination. Under the Boulder Code (as modified by Amendment 2), Boulder was not permitted to discriminate against heteros on the basis of their orientation, but homos and bis were shut out of this Code's sympathetic protection. Under Denver law (as modified by Amendment 2), a gay apartment complex owner was barred from posting a "For Rent - No Straights" sign; but a straight apartment complex owner was free to post a "For Rent - No Queers" sign. Thus, if a plaintiff filed a complaint that defendant fired her because of her sexual orientation, a judge following both state and local law would have been obliged to ask her to amend her complaint by stating her orientation; and if she answered "gay," the judge would have been obliged to rule against her on this ground alone.
Beneath this formal inequality - this exclusion from the law's protections because of who gays are - lurked substantive inequality, Kennedy argued. The Amendment itself, in its social meaning, was a kind of "No Queers" sign writ large. Its caption, "No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation," came uncomfortably close to "No Protect[ion for] Homosexual[s], Lesbian[s] or Bisexual[sl." It was a kind of legal and social outlawry in cowboy country - a targeting of outsiders, a badge of second-class citizenship, a tainting of queers, a scarlet Q. The queer (pun intended) language of Amendment 2 - its odd and obsessive singling out of all nonstandard sexual orientations - was a subtle cue, a Freudian slip that old fashioned animus was afoot here.(11) When a person blurts out the n-word, we wonder; when a voting district looks utterly uncouth in shape, judges are suspicious;(12) and eyebrows are raised...
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