Ruling by numbers: political restructuring and the reconsideration of democratic commitments after Romer v. Evans.

• Author: Rich, Stephen M.

1. INTRODUCTION

   Over the last decade, politicians and citizen action groups have aggressively deployed direct democratic procedures in order to repeal state and municipal legislation benefiting minorities. The federal courts have been tentative in their constitutional review of these repeals.(1) Direct democracy has been called the "most democratic of procedures,"(2) under the view that the purest form of democratic governance is strict majoritarianism, or ruling by numbers. However, the laws reviewed in these cases do more than merely repeal minority protections. They also restructure the political processes of state and local governments in such a way as to impose special burdens upon the interests of minority groups who must seek beneficial legislation at ever higher and more remote levels of government. Three decades ago, the Supreme Court effectively applied strict scrutiny to alterations of state and municipal political processes intended to repeal fair housing laws and to foreclose the future enactment of policies benefiting racial minorities.(3) Recent decisions, however, have made the status of this precedent uncertain.

   This Note will examine political restructuring jurisprudence under the Equal Protection Clause, focusing especially upon the Supreme Court's ruling in Romer v. Evans. The Romer Court held unconstitutional an amendment to the Colorado Constitution (Amendment 2) adopted through a statewide referendum, prohibiting any branch of the state government or any subordinate governmental agency from taking action designed to protect persons on the basis of their homosexual or bisexual orientation. The Court refused to determine whether heightened scrutiny was appropriate to review the anti-gay amendment at issue, holding instead that Amendment 2 was unconstitutional even under the most permissive level of judicial scrutiny. The Court furthermore proclaimed an alternative per se rule under which "[a] law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense."(4)

   Under normal equal protection analysis, heightened scrutiny is triggered upon the use of a suspect classification or the infringement of a fundamental interest.(5) Sexual orientation, however, has not been designated as a suspect classification.(6) The Romer Court extended protection against disadvantageous political restructuring to gays and lesbians both without a finding of suspect classification and without invoking the doctrinal apparatus established in the racial restructuring cases. The majority opinion in Romer exposes the Court's present inclination to ration the judicial tools of heightened scrutiny and suspect classification in cases in which it might be requested to extend their application to minorities not traditionally construed as politically powerless and therefore deserving of special judicial protection.(7)

   The political restructuring cases, however, hold a special place in equal protection jurisprudence: They characteristically involve acts of higher lawmaking(8) damaging to the interests of a particular social minority.(9) These are cases in which acts of state discrimination not only reflect pre-existing political powerlessness, but also actively contribute to conditions of powerlessness. In Romer, the Court embraced the possibility that the Constitution might intervene in democratic politics when acts of political restructuring impose a "special disability"(10) upon a minority group, regardless of whether that group currently qualifies as a suspect class. Thus, the Court's reasoning engenders an open-ended opportunity to "reconstruct" (11) significant portions of the equal protection doctrine. This Note will attempt to determine what vision of democratic equality best unlocks the meaning of the political restructuring cases after Romer, and so can best serve as a guide to the elaboration of future doctrine.

   Process-based theories of equal protection have long recognized that some social minorities must receive heightened judicial protection if they are to be prevented from becoming perpetual losers in our political system.(12) Positivist political theorists have acceded to the process-perfection school insofar as it seeks to restore the conditions under which disadvantaged minorities may participate equally in coalition politics.(13) Effective participation by minorities requires that neither their interests nor their identities be so severely stigmatized as to spoil the receptiveness of potential coalition partners.(14) In a tiered democratic regime such as our own, majorities may be constructed not only by horizontally rearranging the coalition but also by vertically stepping upward in the level of decisionmaking institutions. Thus, a political loser at one level of government may seek an alternative, higher level at which to construct the majority that will enact its particular point of view.(15) In the case of anti-gay rights initiatives, this means that voters in a local context where gays and lesbians are socially integrated may not view their acceptance of homosexual lifestyles to produce an impermissible social or material cost. They may, therefore, support legal protections for gays and lesbians. But majorities constructed at a jurisdictional level removed from the same social situation may be more easily convinced of the costs of tolerance, and they may oppose such protections on the basis of this remote threat.

   Throughout this Note, I will refer to the technique of seeking a sympathetic majority at a higher level of governmental decisionmaking as strategic majority construction. This term describes the scenario in which a majority of the electorate uses its majoritarian status at one jurisdictional level in order to repeal the rights of an unpopular minority at various subjurisdictional levels of government.(16) The consequence of repealing those acts at a higher governmental level is that the institutions ordinarily entrusted to make such determinations will be forced to operate under a gag rule insofar as future acts affecting the rights of the impacted minority are concerned. The issue for judicial consideration is whether such acts of political restructuring should be subjected to special review under the Equal Protection Clause. This Note will argue that they should be.

   Part II will discuss Romer v. Evans as a pivotal episode in the Supreme Court's political restructuring jurisprudence. In that case, the Court expanded its view that political majorities should be prohibited from imposing special burdens upon minorities to include the protection of gays and lesbians. This Part will argue that, in its political restructuring decisions prior to Romer, the Court did not rely upon suspect classification doctrine when it interpreted acts of higher lawmaking imposing a political disability upon a racial minority to trigger strict scrutiny. This Part concludes with the demonstration that the Romer Court's failure to reconcile its decision with the racial restructuring cases has caused doctrinal instability.

   Part III will examine three views of democratic equality: formalism, process perfection, and deliberative politics. This Part will argue that the third view synthesizes aspects of the first two and yet, in its most general form, remains inadequate to describe with precision the commitment to democratic equality animating the restructuring cases. This Part will consider in particular how one instrument of the deliberative view, the judicial exercise of "decisional minimalism,"(17) may serve as a means to uphold the same commitment to facilitate democracy that is sometimes claimed as the justification for acts of restructuring. It will argue that the danger of decisional minimalism is that it may lead to debilitating doctrinal confusions. This Part will argue in particular that minimalism cannot be justified when the Court has purposefully avoided determining the significance of structural rather than substantive acts.

   This Part will also discuss how acts of higher lawmaking, whether at the state or the municipal level, function as gag rules to bind the actions of lower governmental institutions.(18) Either by conserving resources or by retarding activity in a controversial area of legislation, such as antidiscrimination law, gag rules may in fact aid democracies to function. Nevertheless, the kinds of gag rules employed in the political restructuring cases include prohibitions against the consideration of minority interests, thereby generating equal protection controversies. Part III concludes by highlighting problems posed by the use of gag rules, ultimately repudiating the use of the deliberative vision of democratic equality to justify the subjugation of social minorities through higher lawmaking.

   Part IV will provide an alternative reading of Romer in which the Court's prohibition against the creation of a special disability for minority groups is developed as a core constitutional insight. Although this Part is critical of the reasoning presented in Justice Kennedy's majority opinion, it nevertheless interprets the opinion's fundamental prohibition against imposing political disability upon a minority group to be consistent with the earlier line of restructuring cases. This Part ultimately provides an explanation of why Romer is a more egregious, and therefore an "easier," case than the racial restructuring cases, in that Amendment 2 specifically targeted gays and lesbians for unequal treatment.

   Part V develops the vision of democratic equality articulated in Romer. This Part argues that constitutional democracy contains a commitment to prevent democratic structures from burdening identifiable social groups through a coordinate form of political and social disability. This Part will attempt to revise traditional concerns over unjust...