The pariah principle.

• Author: Farber, Daniel A.
• Position: U.S. Supreme Court opinion in Romer v. Evans

The Supreme Court's recent decision in Romer v. Evans(1) has caused both joy and consternation. Among legal scholars, however, it has mostly engendered puzzlement. The Court explicitly avoided the most doctrinally plausible grounds for invalidating Colorado's ban on anti-discrimination protections for homosexuals. Instead it purported to strike down the state constitutional amendment under minimal scrutiny or rational basis review. The word on the street--or, in the case of lawyers and law professors, the word on the internet--is that Romer cannot mean what it says, but instead must be a way-station to declaring homosexuality a quasi-suspect classification like gender or illegitimacy. The speculation is that the Court will eventually use Romer to strike down prohibitions on same-sex marriages and other restrictions on gay rights.

We believe this line of reasoning gives the Romer majority too little credit for intellectual honesty, if perhaps too much credit for progressive impulses.(2) In this essay, we suggest that the decision in Romer means no more and no less than what it says (or at least tries to say): that Colorado's Amendment 2 is invalid regardless of the level of judicial scrutiny. Moreover, we contend that this conclusion does not significantly expand current law but is instead perfectly justifiable under existing precedent. The decision also does not necessarily threaten most other restrictions on homosexuals, including bans on same-sex marriage.

We will begin by exploring the seemingly perplexing failure of the Romer Court to invoke some familiar doctrinal support. We will then attempt to articulate the principle we believe underlies Romer but is imperfectly explained in the opinion. This principle, in a nutshell, forbids the government from designating any societal group as untouchable, regardless of whether the group in question is generally entitled to some special degree of judicial protection, like blacks, or to no special protection, like left-handers (or, under current doctrine, homosexuals). We believe this principle is firmly rooted in existing constitutional law. Finally, we consider the difficulties of applying this principle to Amendment 2 and other legislation. We hope at least to persuade the reader that, contrary to the views of the dissenters and of many commentators, Justice Kennedy's opinion in Romer makes an intellectually respectable argument.

1. THE ROADS NOT TAKEN

   In 1992, Colorado voters ratified an amendment to the state constitution that effectively prohibited the state or any of its subdivisions from enacting laws that protect homosexuals from discrimination.(3) The Colorado Supreme Court ultimately enjoined the state from enforcing the provision (Amendment 2), and the United States Supreme Court affirmed in Romer. At first blush, there seem to be three plausible arguments for invalidating Amendment 2. First, it might deprive homosexuals of a fundamental right, thus triggering (and failing) strict scrutiny under the equal protection clause. This, in fact, was the basis for the Colorado court's decision. Second, it might be directed at a discrete and insular minority, again triggering some form of heightened scrutiny under the equal protection clause. Although plaintiffs made this argument, and many commentators support it,(4) none of the various courts in the Romer litigation accepted it. Finally, the Supreme Court might have relied on cases that apply a somewhat stricter form of minimal scrutiny, sometimes called "rational basis with teeth." In fact, the Court did none of these things.

   The Colorado Supreme Court held that Amendment 2 deprived homosexuals of "the right to participate equally in the political process."(5) Applying strict scrutiny to the deprivation of this fundamental right, the court concluded that it was unsupported by a sufficiently compelling governmental interest.(6) In holding that "the right to participate equally in the political process" is a fundamental right, the Colorado court relied partly on voting rights cases, but primarily on cases which it said "bore a much closer resemblance to the question presented by Amendment 2."(7) According to the Colorado court, these cases, including Reitman v. Mulkey,(8) Hunter v. Erickson,(9) and Washington v. Seattle School District No. 1,(10) stand for the broad proposition that a "'[s]tate may no more disadvantage any particular group by making it more difficult to enact legislation [on] its behalf than it may dilute any person's vote or give any group smaller representation than another of comparable size."'(11) The United States Supreme Court explicitly disavowed this rationale, noting that it was affirming "on a rationale different from that adopted by the state supreme court."(12)

   The Colorado court itself rejected another potential basis for applying heightened scrutiny to Amendment 2. Plaintiffs had contended that homosexuals should be considered a suspect or quasi-suspect class, thus subjecting Amendment 2 to strict or intermediate scrutiny. The trial court rejected this argument, and the Colorado Supreme Court explicitly refused to consider it.(13) The United States Supreme Court also ignored this argument, reviewing the Amendment under the standard applying to legislation that "neither burdens a fundamental right nor targets a suspect class."(14)

   Finally, the Supreme Court might have relied on the approach taken in a pair of cases from the 1980s. In each case, the Court had purported to apply minimal scrutiny to a statute that neither burdened a fundamental right nor targeted a suspect class, but it nevertheless invalidated the challenged law after a close examination of its purposes and effects. In Plyler v. Doe,(15) Texas had attempted to prohibit illegal alien children from attending public schools. The Supreme Court, after holding that illegal alien children do not constitute a suspect or quasi-suspect class and that education is not a fundamental right, rejected every justification for the law offered by the state. In City of Cleburne v. Cleburne Living Center,(16) the city of Cleburne (also in Texas) had zoned a group home for the mentally-disabled out of a residential neighborhood. Again, after explicitly concluding that the rational basis test provided the appropriate level of scrutiny, the Court struck down the zoning restriction. Given the Court's rather cavalier rejection of the plausible governmental interests behind these two laws, it is difficult to reconcile the two cases with ordinary applications of the rational basis test. Indeed, commentators have generally viewed these two cases as evidence of a fourth tier of scrutiny under the equal protection clause, sometimes labeled "rational basis with teeth."(17) Although these cases might thus have provided support for invalidating Amendment 2 using minimal scrutiny, the Romer opinion did not cite either one. Instead, the Court relied on hoary cases embodying weak formulations of the rational basis test, including F.S. Royster Guano Co. v. Virginia,(18) Williamson v. Lee Optical of Oklahoma, Inc.(19) and Railway Express Agency v. New York.(20) The Court apparently believed that Amendment 2 failed to satisfy even the most minimal scrutiny.

   The Court also declined the invitation to apply a literal reading of the equal protection clause to Amendment 2. At oral argument, the suggestion had been made that Amendment 2 deprived homosexuals of any right to legal protection, even under laws of general application such as the assault statutes.(21) Given the lack of any textual basis in Amendment 2 for this interpretation, the Court wisely eschewed this analysis. Nor did the--Court follow the suggestion, made in an amicus brief filed by some leading constitutional scholars, that Amendment 2 amounted to a form of outlawry. Their premise was that the equal protection clause "requires a regime that gives all persons equal access at least to the possibility of protection under the laws of the state from the wrongs that may befall them--whether such wrongs as robbery or such wrongs as discrimination, and whether privately or officially inflicted."(22) Apart from one passing remark,(23) however, the Court did not explicitly endorse this line of analysis any more than it did a heightened level of scrutiny.

   Hence the puzzlement of legal commentators. As we all teach our students,(24) the Court never invalidates statutes unless it applies something more than "real" minimal scrutiny; it has not done so, our lectures recite, since 1937. Indeed, both of the authors play the following game with students as part of the unit on the rational basis test: "You think of a ridiculous statute and I will give a sufficiently rational justification to withstand minimal scrutiny." We have justified requiring cars to be painted blue (to give a boost to the blue paint industry, or to make it easier to identify emergency vehicles), allocating benefits based on astrological signs (perhaps there is something to the personality differences astrologers attribute to date of birth, or else division by astrological sign is a convenient alternative to a lottery), and requiring all contracts to be written in Sanskrit (to foster education and increase employment opportunities for linguists). We have been stumped only once, when a student proposed the "Jim Jones law": everyone in the United States has to drink deadly poison at a particular time.(25) So how could the Supreme Court have invalidated a provision that three Justices considered eminently reasonable?

   The Court's puzzling reliance on the rational basis test, while eschewing seemingly more promising lines of argument, left it vulnerable to a blistering dissent by Justice Scalia. Justice Scalia argued that the rational basis test was easily met. If a state can make homosexual conduct a crime, "surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct."(26)...