Romer's Relevance to the Same-Sex Marriage Cases

By Mike Dorf

The SCOTUS cert grants in Windsor (the DOMA case) and Perry (the Prop 8 case) do not necessarily mean that the Court will resolve the question that makes these potentially landmark rulings: Whether the Constitution requires legal recognition of same-sex marriage.  For each case, there are a couple of paths towards a narrower decision.

Justiciability doctrines provide one path to ducking the central question.  In Windsor the Court could find that, with the Obama Administration having chosen not to defend DOMA, the "Bipartisan Legal Advisory Group" of the House of Representatives lacks standing to defend it. In Perry, the Court could find that the sponsors of Prop 8 lack standing to argue for Prop 8's validity on appeal.  

Even if the Court reaches the merits, in each case it is possible to rule for the challengers without finding a general right to SSM. In Windsor, the Court could find that either federalism alone, or principles of federalism in combination with equal protection, yield a heightened standard of judicial review that wouldn't necessarily apply to a state law barring SSM.  Meanwhile, in both Windsor and Perry, the Court could rely on Romer v. Evans to establish that the respective enactments are invalid as reflecting special animus against gays and lesbians, without addressing the question whether the denial of a right to SSM invariably reflects such animus and is therefore invariably invalid.

The Romer rationale may prove attractive to a majority of Justices in Windsor or Perry as a means of deciding these cases in favor of sympathetic plaintiffs while delaying the core question for another few years, in the hope that by the time the issue returns to the Court it looks more like Loving v. Virginia--an issue where there's national consensus and a few lagging outlier states--than like Roe v. Wade--an issue where public opinion is deeply divided.

For now, I want to note a different aspect of Romer's  relevance to Windsor and Perry.  Romer--or rather, Justice Scalia's dissent in Romer--should be a cautionary tale about ending up on the wrong side of history.  The key passage warrants quoting in full.  As you will see, even as he disclaims an interest in the "culture war," Justice Scalia, through his rhetoric, reveals his sympathy for what he regards as victimized, beleaguered traditionalists:

. . .  I think it no business of the courts (as opposed to the political branches) to take sides in this culture war.

But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than " `a bare . . . desire to harm a politically unpopular group,' " ante, at 13, quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), is nothing short of insulting. (It is also nothing short of preposterous to call "politically unpopular" a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of 46% of the voters on Amendment 2, see App. to Pet. for Cert. C-18.)

When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins--and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: "assurance of the employer's willingness" to hire homosexuals. Bylaws of the Association of American Law Schools, Inc. §6-4(b); Executive Committee Regulations of the Association of American Law Schools §6.19, in 1995 Handbook, Association of American Law Schools. This law school view of what "prejudices" must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws, see, e.g., Employment Non Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which took the pains to exclude them specifically from the Americans With Disabilities Act of 1990, see 42 U.S.C. § 12211(a) (1988 ed., Supp. V).

That language was offensive when Justice Scalia wrote it in 1996.  (Substitute "Jews" for "homosexuals" in the parenthetical discussion of the "enormous influence in American media and politics" if you don't see the offensiveness.) But in the ensuing sixteen years it has increasingly become an embarrassment as well.  When I teach Romer, even my conservative students--most of whom think the case was wrongly decided--find Justice Scalia's dissent laughable, in the way that they might brush off the views of a crazy old relative. In deciding Windsor and Perry, the current set of Justices should be at pains to avoid saying anything that, in less than two decades, will brand them as retrograde nuts.

To some extent, avoiding the harsh judgment of history is impossible.  None of us can fully escape the prejudices of our age.  Thus, for example, even as we celebrate the first Justice Harlan's dissent in Plessy v. Ferguson as a prescient herald of equality, we cringe upon reading its endorsement of white supremacy and anti-Chinese prejudice.  Today's taken-for-granted attitudes may become tomorrow's prejudice.

It is one thing to recognize that future societies may hold more enlightened views than our own along dimensions currently unknown.  It is quite another thing to plant a flag firmly in ground that will clearly be overtaken by the tide of enlightened opinion in a matter of a few years. Should the Court expressly reject a right to SSM in Windsor or Perry, the case will eventually come to be viewed as part of the anti-canon of constitutional injustices, taking its place alongside decisions like Dred Scott, Plessy and Korematsu.  No Justice who thinks this through will want to end up there.

Would it be possible to write an opinion that rejects a right to SSM but eschews offensive language?  Sure. One could talk about the democratic process and the limited role of the Court. Barney Frank made just this point some years ago when he distinguished Justice Scalia's dissent in Lawrence v. Texas--which he ascribed to homophobia--from Justice Thomas's dissent in the same case--which went out of its way to disagree with the Texas law on policy grounds.

But in the long run, such subtleties matter little. Dred Scott, Plessy and Korematsu take their place in infamy mostly because of the results they reached, not the language they employed to get there.  Indeed, in Korematsu, the majority opinion twice insisted that the Court was not endorsing a principle of "racial prejudice." The disavowal was for naught.

Accordingly, I am relatively optimistic about the outcome of Windsor and Perry. Perhaps the Court will rely on justiciability doctrines to avoid the merits.  Perhaps it will write narrow opinions upholding the challenges.  Perhaps some number of Justices will endorse a broad right to SSM.  In any event, I think it unlikely that a majority of the Court would damage the institution by clearly placing it on the wrong side of history.