Principled silence.

• Author: Wolff, Tobias Barrington

For the first time in its history, the Supreme Court has drawn a line that the state may not cross in its treatment of gay people. In Romer v. Evans,(1) the Court was asked to rule on the constitutionality of Amendment 2 to the Colorado State Constitution, which categorically prohibited gay people from obtaining legal protection from discrimination based on their sexual orientation.(2) The Colorado Supreme Court had held that the right to participate in the political process, with which the amendment clearly interfered, was a fundamental right requiring strict judicial scrutiny, and that the amendment failed that test.(3) The U.S. Supreme Court affirmed on different grounds. Writing for a six-member majority, and giving short shrift to a vigorous dissent by Justice Scalia, Justice Kennedy held that Amendment 2 was repugnant to the spirit of the Equal Protection Clause. The Court deployed its most deferential standard and found that "Amendment 2 fails, even defies, this conventional inquiry ...; it lacks a rational relationship to legitimate state interests."(4) The majority thereby answered a question that the Court had left open in its decision in Bowers v. Hardwick:(5) Can the Equal Protection Clause ever be used to strike down anti-gay legislation? In the ten years between Bowers and Romer, only one court of appeals had found room for gay people inside the Equal Protection Clause. Its insistence, now vindicated, that the equal protection and due process claims of gay litigants are analytically distinct remained for years as a lone voice amidst an unsympathetic, hostile throng.(6)

Romer is the seminal decision in the jurisprudence of equal protection for gay people. As such, it is the beginning of a story, not the end. This Case Note argues that Justice Kennedy's carefully crafted opinion foreshadows chapters in that story that have yet to be written, shedding light on an issue that Romer ultimately leaves unresolved: Do gay people constitute a suspect class that merits heightened judicial protection? The Romer Court had two distinct analytical models upon which to draw, following its two landmark rational review cases: an open-ended analysis grounded in principle, as exemplified by Reed v Reed,(7) or an exhaustive analysis grounded in fact, as exemplified by City of Cleburne v. Cleburne Living Center, Inc.(8) It chose the former, speaking not at all to the factual record on which the lower court had rested its decision. That silence carries a message - one that betokens a shift in the attitude of the Court toward the claims of gay litigants and casts the more strident portions of Justice Scalia's dissent as a harsh counterpoint to its subtle theme. To hear this message properly requires attention to context - its absence in the majority opinion, and its use in the dissent.

The Romer majority introduces its analysis with the proposition that evaluating the merits of an equal protection claim always depends upon "knowing the relation between the classification adopted and the object to be attained."(9) Those laws that the Court has upheld against rational basis challenges, it reminds us, have been "narrow enough in scope and grounded in a sufficient factual context for [the Court] to ascertain that there existed some relation between the classification and the purpose it served."(10) But the majority opinion is remarkably devoid of any discussion of the particular traits that serve to define gay people as a class.(11) Rather, the majority concludes that no factual context could ever support a classification of such "sheer breadth" as Amendment 2.(12) But this bold statement of principle, when considered in isolation from the nature of gay people's class status and the discrimination levied against them, seems discontinuous with the Court's previous equal protection jurisprudence. Classifications of rights and privileges based on age, for example, exhibit extraordinary breadth in this country: Young people are categorically excluded from participating in the political process, voting, and serving on juries, and older Americans are excluded from the private and public sectors alike through mandatory retirement ages. Yet the Supreme Court has upheld such broad classifications on a rational basis theory(13) by adverting to those "distinguishing characteristics [of different age groups] relevant to interests the State has the authority to implement,"(14) and to our common interest, as people who age, in protecting both the young and the old.(15) Similarly, in Romer, it seems to be the combination of the breadth of Amendment 2, the nature of the classification, and the identity of its target that so offends the Constitution. On this combination of factors, however the majority is silent.

Such reticence calls to mind the Court's opinion in Reed v Reed.(16) There, parties to a probate action...