In their issue this past May, the editors of the Harvard Law Review included a very useful, very provocative student note entitled “Romer Has It.” This brief essay, never overbearing, positions its readers to think hard again and again, to challenge, to consider alternative paths. The Note is not an AI thinking machine taking over work at hand. It is akin instead to spiritual exercising, to a series of sometimes startling declaratory prods. Ignatius Loyola “pumps you up!”
I react illustratively here.
Romer v. Evans was a 1996 Supreme Court decision announcing that a Colorado constitutional amendment violated the Fourteenth Amendment Equal Protection Clause. A popular initiative, the revision decreed that the state’s law could not incorporate civil or criminal remedies–-seemingly a very wide range-–responding to adverse conduct keyed to sexual orientation. Ten years earlier the Court had decided in Bowers v. Hardwick that federal notions of due process did not prohibit state laws criminalizing acts of “homosexual sodomy.” These acts were not constitutional concerns, Justice White wrote. Seven years after Romer, Lawrence v. Texas overruled Bowers, now depicting “homosexual sodomy” as a matter of personal privacy and constitutional liberty that Fourteenth Amendment due process norms indeed acknowledged. Subsequent decisions in federal and state courts led to Obergefell v. Hodges, Supreme Court recognition of same-sex marriages as due process-protected too. Lawrence and Obergefell looked like landmarks. Famously, Justice Kennedy wrote the Court’s majority opinions in Romer, Lawrence, and Obergefell. Justice Scalia dissented, famously too.
Dobbs v. Jackson Women’s Health Organization arrived on scene in 2022. The Harvard editors do not contest Justice Alito’s assertion that his majority opinion addresses due process only in connection with the matter at hand-–“right to life” and “right to choose” abortion questions. But there is still real reason to be concerned, they worry, given the general wording of the opinion’s insistence that due process scrutiny ordinarily does not reach state regulations of intimate decisions of individuals. They underscore the recent sharp surge in state legislation constraining individuals and institutions seeking to address health and educational troubles associated with facts of same sex life. “Don’t say gay!” “Ignore transsexuals!” If there are no ready due process norms, what constitutional resources are left for concerned lawyers and judges?
The answer, perhaps: Re-remember Romer?
In Romer, Justice Kennedy pushed Bowers off to the side. Instead of considering “due process of law,” he brought to bear its Fourteenth Amendment companion phrase “equal protection of the laws.” Why not enlist equal protection analysis again, the Note argues, this time to relocate Dobbs. We might treat it instead as plainly not within the vicinity of sexual orientation cases. To work this trick, we need a useful substitute calculus. The Note judges Kennedy’s own Romer majority opinion to be mostly not “it”-–incantation instead. One telling early critic declared that the opinion was apparently “missing six pages.” The Harvard editors also report that there are only a few, very brief references to Romer in opinions of now-sitting Justices. No problem! Undertaking an impressively intricate choreography of close readings, the Note extracts potentially apropos language. “[T]hree recurrent considerations” emerge, arguably probative in judging whether to treat “an anti-LGBTQ law as presumptively irrational under the Equal Protection Clause.” “Intermediate scrutiny” of a sort comes to mind, reminiscent of late twentieth century “rational basis with bite” protocols and the like.
This is the gist of the proposed inquiry (the subpart markers are my doing):
(1) Does the law implicate a classification based on (a) a group’s identity or (b) conduct? (2) If so, is that group (c) an unpopular one that (d) lacks functional access to the political process? (3) Was the law (e) explicitly or implicitly motivated by animus, or (f) an attempt to classify for classification’s sake? (Romer Has It, May 2023)
Romer becomes a six-part three-part test. Interesting questions abound.
Are we considering alternatives or conjunctions–“identify” or “conduct,” for example, or “identity” and “conduct”? How “unpopular”? At what point does obstructed political access become “[dys]functional”? Must a problematic law be entirely or mainly “motivated by animus,” or is it enough that “animus” is one of several prompts? What counts as “classify[ing] for classification’s sake”? There’s a lot to think about. All three of the main inquiries, however separated or overlapped, inhabit a common commitment. Romer “stands for the proposition that ‘governmental objectives steeped in animus’ can never be legitimate.” “’[L]aws that discriminate against gays will always be constitutionally doubtful … because they always arouse suspicion that they rest on a bare desire to harm a politically unpopular group.’”
Maybe our politics viewed constitutionally is in important part an accumulation of connotative figurations, ways of viewing clashing stances and attitudes. Justice Scalia, dissenting in Romer, might have thought so: German “kulturkampf” was business as usual in America, he insisted. Chief Justice Rehnquist’s opinion in the Falwell case? Robert Post? Missing in the Romer Note, William Eskridge took on Justice Scalia’s dissent directly in another metaphorically aware framing, across an important series of writings ultimately building up an alternative political sociology. (E.g., Eskridge, A Jurisprudence of “Coming Out”, 106 Yale L.J. 2411 (1997)). Are a few recent Supreme Court phrases, however carefully assembled, staging enough to frame judicial theater? Too weak tea? If we want ostensibly agnostic muddle, shouldn’t we want Dobbs? Or is the right question how–how intermediate scrutiny somehow points past Dobbs, manages oppositions less haphazardly, more emphatically? Isn’t that precisely the goal of intermediate scrutiny?
There are alternatives, we know.
For example, we might want to read closely federal district court judge James Moody’s opinion in Brandt v. Rutledge, released in late June this year (after the Harvard Note), declaring unconstitutional an Arkansas law barring physicians from providing or referring gender transition procedures if patients are under the age of eighteen. Extended, carefully written findings of fact figure powerfully. Looking at both anecdotal and structural accounts, Moody assembled unrebutted evidence of medical competencies, difficulties highly likely abated by successful gender management, piercing sufferings of children and parents prompted given interruption of treatment. All were relevant facts, Moody stressed. A quite terse summary of constitutional conclusions followed consistent with the thrust of the facts declared. Compelling facts appeared to resolve choice of law. Plainly not intermediate scrutiny.
In Romer, an unusual amicus curiae brief marked a surprising path.
Counsel of record Laurence Tribe wrote the brief. He was the author of American Constitutional Law, a full-barrel treatise, the first so acclaimed since Cooley’s a century earlier. Tribe represented Michael Hardwick in Bowers. Four other prominent academics joined as amici. Philip Kurland was a fierce Warren Court critic. Gerald Gunther specified first parameters of the equal protection “middle tier.” John Ely wrote Democracy and Distrust, succinctly outlining a principal constitutional architecture. Kathleen Sullivan emerged later, an expert navigator of the contested middle ground, a salvager of seemingly intractable crack-ups.
Surprisingly, the amicus brief ignored the Supreme Court opinions, doctrinal schemas and skirmishes largely preoccupying constitutional jurisprudence at the time. One phrase in the second sentence of the first section of the Fourteenth Amendment sufficed:
“No state shall … deny to any person within its jurisdiction the equal protection of the laws.” …
May a state set some persons apart by declaring that a personal characteristic that they share may not be made the basis for any protection pursuant to the state’s laws from any instance of discrimination, however invidious and unwarranted? [¶] The answer to that question must be no. … [¶] No extrapolation from precedents dealing with racial or other minorities, or from precedents dealing with rights of political or legal participation is needed …. [F]acial unconstitutionality flows directly from the plain meaning of the Fourteenth Amendment’s text. … Inserting a ban … in a state constitution entails not just a repeal of, or failure to enact or to enforce, laws protecting some citizens from discrimination, but rather puts the matter (and, in a sense, the group) beyond the reach of the state’s system for making or enforcing laws.” (Brief for Laurence H. Tribe, John Hart Ely, Gerald Gunther, Philip B. Kurland, and Kathleen M. Sullivan, as Amici Curiae in Support of Respondent, Romer v. Evans, U.S, (No. 94-1039), 1995 WL 17008432, at Pp. 3, 4, 7.)
The Constitution is clear.
Justice Kennedy seized the point-–elaborating, buttressing, ramifying:
Amendment 2 confounds th[e] normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. 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. (Romer at P. 633.)
[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. … (Romer at Pp. 634-35.). The breadth of the amendment is so far removed from the particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. … A State cannot … deem a class of persons a stranger to its laws. (Romer at P. 635, emphasis added.)
The result is clear.
What are we to make of clarity?
Judge Moody’s powerful opinion in Brandt succeeds, if it does, because the facts of the case, as alleged by plaintiff attorneys, manifestly not well-challenged by defense counsel, put the trial judge in position to reach and write a clear, carefully detailed conclusion. Adverse medical consequences following from legislative restrictions are made to show precisely, both in general and in tragic individual cases. The manifest force of Moody’s narrative also organizes his legal analysis-–its confidently brief confirming summary of the law at hand. This decisive two-step notably follows a familiar form–a working stricture first dramatically pressed in the Field Code in 1848. Professor Pomeroy characterized this new normalcy:
[T]he existence of a legal right in an abstract form is never alleged…; but, instead …the facts from which that right arises are set forth, and the right is inferred therefrom. The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiff’s primary right and the defendant’s corresponding primary duty have arisen…. (John Norton Pomeroy, Remedies and Remedial Rights According to the Reformed American Procedure 487-88 (1876).)
Clarity–-its realization-–is the locomotive’s engine. In 2023, a century and a half later, Judge Moody’s opinion is exemplary. “Ancestral recall”?
In Romer? Professor Tribe’s phalanx and Justice Kennedy’s majority insist that Equal Protection Clause language is itself clear. The amicus brief and the majority opinion plainly look closely at the Colorado amendment, determining that it is something like the legal equivalent of a mob scene–-“mobscene,” not law in truth therefore, not law’s “equal protection.” No extensive history reports appear in detail. The constitutional terms enforced ultimately figure outside time. We are made aware of something like an artifact–-a memorial, a monument, a set realization. Whatever is of moment in 1866 or 1868 is of moment in 1996 and 2023. A fitting response to enormities–to conjunctions too many or too complicated to disentangle, to convert to analyzable parts? This is pretty much the idea Professor Tribe and Justice Kennedy convey. The amicus brief and the majority opinion countered the all-aggregating Colorado enactment by putting the Fourteenth Amendment Equal Protection Clause in opposition, presenting it as itself clearly encompassing, as itself a normative entirety.
“Equal protection of the laws” needs to appear to be a redounding expression, an emblematic sequencing. Provocatively, Justice Kennedy begins his opinion with an affiliating gesture, quoting Justice Harlan dissenting in Plessy v. Ferguson. Near the end he similarly quotes Justice Bradley warning in the Civil Rights Cases. Both passages start from hostilities tied to “race,” reframed to encompass hostilities tied to “classes.” Apt circumstances of concern call to mind threatening entanglings of a type already at hand-–encountered, countered, variously re-encountered, re-countered. Isn’t this the thematic precisely “shining through” the idea of “the equal protection of the laws”? What “is” is at once sometimes what “was”. Hugo Black’s careen emblematic? Chambers v. Florida and the Ku Klux Klan?
Maybe we should read Romer-–all three of its principal analyses (Scalia’s opinion too)-–as tensely “basic”? “The way we live now”?
