Date of this Version
Notre Dame Law Review (1997) 72(2): 345-372.
It bears repeating that the Supreme Court's decision in Romer is of trivial doctrinal import. The Court did not recognize homosexuals as a suspect or quasi-suspect class, nor did it reverse or undermine its landmark decision in Bowers v. Hardwick. Moreover, the narrow holding of Romer suggests quite strongly that typical laws disadvantaging homosexuals--the military exclusion, the heterosexual paradigm of civil marriage, and perhaps even better-crafted and more narrow versions of Amendment 2--do not offend the Equal Protection Clause. These laws rationally advance legitimate government interests and should easily pass scrutiny under the rational basis test applied by the majority in Romer.
However, the majority and dissenting opinions in Romer are significant in one respect-they tell clashing and fascinating stories about the culture war that is currently raging in our pluralistic and disunited society. Justice Kennedy paints a surrealistic picture of Colorado as the hate state. This is the narrative of homosexual fundamentalism, and it is the one that is currently dominant among America's progressive elites. Justice Scalia's story of the Kulturkampf is more trenchant. Scalia understands that Amendment 2 was an attempt by "tolerant Coloradans" to prevent civil rights laws from being used to legitimize homosexual conduct and delegitimize traditional notions of sexual morality. Kennedy's fundamentalism blinded him to the social reality that the citizens of Colorado had many rational and legitimate reasons for supporting a constitutional amendment designed to invalidate laws which conflate the values of the sexual revolution with those of the civil rights movement. Scalia understood these complexities of modem America; and for all the public criticism his opinion has received from the Templar class in society, it rings true.