The Odd Couple: How Justices Kennedy and Scalia, Together, Advanced Gay Rights in Romer v. Evans
| Jurisdiction | United States,Federal |
| Publication year | 2016 |
| Citation | Vol. 67 No. 2 |
The Odd Couple: How Justices Kennedy and Scalia, Together, Advanced Gay Rights in Romer v. Evans
Tobin A. Sparling
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Amidst the excitement surrounding the flurry of decisions supporting gay marriage,1 which culminates in the United States Supreme Court's affirmation of same-sex marriage in Obergefell v. Hodges,2 Romer v. Evans,3 the Supreme Court's first step on the road to marriage equality, has not received the recognition it deserves. Yet, as its twentieth anniversary nears, Romer warrants a reexamination and greater recognition of its place in the advancement of gay rights. Decided in 1996, Romer held that Amendment 2 to the Colorado constitution4 violated the Equal Protection Clause5 because the amendment discouraged the enactment of laws banning discrimination based on sexual orientation.6 The decision marked the beginning of an era in which the
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Court examined the discrimination faced by homosexual people differently and finally took it seriously.7
In the Romer majority opinion, Associate Justice Anthony Kennedy portrayed the effect of Amendment 2 on gay Coloradans as an affront to human dignity.8 Only ten years earlier in Bowers v. Hardwick,9 a majority of the Supreme Court upheld laws criminalizing homosexual conduct and implied that gay people lacked any dignity at all.10 In this respect, Romer marked a significant change in the way the Court characterized gay people.11
Nevertheless, Justice Kennedy's majority opinion, however well-meaning, suffered in a number of respects. Focusing on human dignity as a universal moral imperative, which the United States Constitution must protect, the opinion relegated gay rights to the sideline.12 Justice Kennedy's evident desire to craft a "landmark" opinion further impaired its effectiveness. His reliance on hyperbole and moral platitudes proved to be distancing. The opinion's majestic tone lacked a sense of either immediacy or urgency. Indeed, the opinion read more like moral philosophy than a response to a specific injurious action.
This Article argues Romer's positive impact is attributable as much to Justice Scalia's strident, angry dissent as to the majority opinion itself. That dissent brought gay rights to the fore of the question. It argued the cause for social disfavor of homosexual behavior in the strongest of terms.13 However, this angry dissent, by its very association with the majority opinion, framed the majority opinion in a more overtly gay rights context.14 Attributing to the majority opinion a gay rights agenda, which Justice Kennedy had never enunciated, Justice Scalia effectively radicalized it.15 Paradoxically, this edgier makeover appealed to and energized gay rights advocates in a way that Justice
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Kennedy's opinion, standing alone, probably could not. Thus, Justice Scalia played a critical role in making Romer a landmark decision on the gay rights front.
Part II of this Article discusses the legal and social landscape of Romer and the looming presence of Bowers. Part III explores generally the distinctive aspects of both Justice Kennedy's and Justice Scalia's writing in Romer. Part IV discusses the Romer opinions in detail. It explains how Justice Scalia's dissent enhanced the impact of Justice Kennedy's majority opinion. Finally, Part V assesses how this "odd couple's" opinions in Romer contributed to the advancement of gay rights in America.
In Bowers v. Hardwick, decided in 1986, the United States Supreme Court dealt a substantial blow to the nascent gay rights movement by holding that the United States Constitution permitted states to criminalize homosexual conduct.16 Quiet advocacy for gay rights had begun decades earlier. In 1924, Henry Gerber established the Society for Human Rights, the first organization to advocate for homosexual rights.17 During the 1950s, the Mattachine Society and the Daughters of Bilitis, a lesbian organization, formed with similar agendas.18 Although not the first public protest of discrimination against homosexual people,19 the Stonewall Riots of June 28, 1968 are often credited as
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the spark that ignited the modern gay rights movement.20 In conjunction with New York City policy to shut down gay establishments and arrest suspected homosexuals, the police raided the Stonewall Inn in Greenwich Village. Its gay and transgender patrons fought back, making front-page news.21 A year later, to mark the anniversary of the Stonewall Riots, the first gay rights parades in the United States occurred in New York, Los Angeles, Chicago, and San Francisco.22 Within several years, the Stonewall Riots inspired the formation of gay rights organizations in most of the country's major cities.23
Throughout the 1970s and 1980s, gay rights activism became more visible in tandem with the rise of the feminist and abortion rights movements.24 Some political successes occurred at the local and state levels with the passage of regulations protecting gay people from discrimination25 and the repeal of sodomy statutes.26 However, public hostility towards homosexuality remained prevalent, and organizations formed to oppose gay rights. In 1977, singer Anita Bryant established the group Save Our Children to counter homosexual activists' proposition27 that "theirs is an acceptable alternate way of life."28 Her group successfully led the effort to repeal a Miami-Dade County regulation banning discrimination on the basis of sexual orientation.29
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Bowers demonstrated how tenuous the efforts to achieve public acceptance of gay rights really were.30 At the time of the Court's decision, twenty-four states and the District of Columbia still criminalized sodomy between consenting adults.31 In 1982, Michael Hardwick had been charged with engaging in sex with another man in violation of a Georgia statute,32 which made homosexual and heterosexual sodomy a criminal offense.33 Hardwick asserted that, as a practicing homosexual, the statute violated his Ninth Amendment34 and due process rights under the United States Constitution to engage in private and intimate association.35 The United States Court of Appeals for the Eleventh Circuit ruled in Hardwick's favor.36 The Supreme Court, however, reversed in a five-to-four decision.37
Associate Justice Byron White wrote the majority opinion,38 which was accompanied by separate concurrences by Chief Justice Warren Burger39 and Associate Justice Louis Powell.40 Justice Blackman wrote the dissent.41 Chief Justice Burger, however, wrote the statement that summed up the Hardwick holding best—"[I]n constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy."42 Thus, the Court transformed the case from a right to privacy to a right to commit homosexual sodomy.
Justice White immediately distinguished sodomy from the actions previously extended under the right to privacy.43 He noted, "No connection between family, marriage, or procreation on the one hand and
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homosexual activity on the other hand ha[d] been demonstrated."44 Additionally, sodomy could not be deemed one of "those fundamental liberties"45 that are "deeply rooted in this Nation's history and tradition."46 Having outlined America's long history of laws banning homosexual conduct, Justice White asserted that equating sodomy to fundamental rights was "facetious."47 Chief Justice Burger's concurrence expounded this argument in more graphic terms. He observed, "Blackstone described 'the infamous crime against nature' as an offense of 'deeper malignity' than rape, a heinous act 'the very mention of which is a disgrace to human nature,' and 'a crime not fit to be named.'"48
Justice White also ruled out finding, under the Due Process Clause,49 a new fundamental right to homosexual conduct.50 To do so would expand the Court's authority beyond constitutional bounds.51 In addition, it did not matter that the conduct had occurred between consenting adults in a private home.52 Justice White noted that making an exception for consenting adults to engage in homosexual conduct at home would open the door to the protection of illegal drug use, adultery, incest, and other crimes in which consenting adults engaged at home or in a similar setting.53
Finally, even if homosexual conduct were not a fundamental right, Hardwick argued that its prohibition still violated the Due Process Clause.54 Moral disapproval, he asserted, did not provide a rational basis for its ban.55 Justice White, however, disposed of this argument in short order. He noted that many laws derived from moral precepts and found no reason why proscriptions of sodomy should prove an exception.56 Chief Justice Burger chimed in, concluding, "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."57
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Although the decision in Bowers angered the gay community and energized its commitment to reform, the decision dealt a significant blow to the gay rights movement.58 Efforts to convince legislatures to repeal sodomy statutes stalled.59 In the family law arena, gay parents suffered grievously in custody adjudications. Courts cited and quoted Bowers to demonstrate gay parents' moral unfitness and limited the parents' access to their children.60 Indeed, Bowers' corrosive characterization of homosexuality and its frequent repletion in lower courts made the denigration of gay people almost respectable.61 With the contemporaneous onset of Acquired Immune Deficiency Syndrome (AIDS), the advent of right-wing talk radio, and the rapid growth and assertion of political power of conservative evangelicals and their associated organizations, publically-voiced disdain of homosexuals became commonplace.62 Thus, throughout the 1980s and 1990s...
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