Ever since the Ninth Circuit's landmark ruling last week in Perry v. Brown striking down California Proposition 8 as a violation of the Equal Protection Clause, there has been a great deal of hand-wringing about Judge Reinhardt's majority opinion, with commentators on Balkinization and Huffington Post arguing that the majority fundamentally erred in relying so heavily on the Supreme Court's 1996 decision in Romer v. Evans, authored by Justice Anthony Kennedy. As these commentators see it, Romer was a very narrow ruling, and the Ninth Circuit's reliance on it may backfire, provoking Justice Kennedy to vote to reject the Ninth Circuit's reasoning (should Perry reach the High Court). But these criticisms are hard to square with what Justice Kennedy said in Romer about the meaning of the Fourteenth Amendment's universal guarantee of equality for all persons.
Justice Kennedy's opinion in Romer -- the first case in which the Supreme Court held that discrimination on the basis of sexual orientation violates the Equal Protection Clause -- began with the first principles at the core of the text's guarantee of the equal protection of the laws to all persons. The opinion begins:
One century ago, the first Justice Harlan admonished this Court that the Constitution 'neither knows nor tolerates classes among citizens. Unheeded then, these words now are understood to state a commitment to the law's neutrality where the rights of person are at stake.
Justice Kennedy returned to the core meaning of the text's guarantee of equality in the final paragraphs of the opinion, concluding that Colorado's Amendment 2 was a form of what the framers of the Fourteenth Amendment called "class legislation," a "status-based enactment" "born of animosity to the class of persons affected" that stripped gay men and lesbians of basic civil rights "to make them unequal to everyone else." These principles are hardly narrow -- they underscore that the Equal Protection Clause guarantees equality under the law to all persons, and prohibits the government from discriminating against any individuals based on prejudice, bias, or animus. The Ninth Circuit was right to rely heavily on them in Perry.
Romer's equal protection framework applies to any law adopted out of class-based animus and without any legitimate state interest, whether the law takes away existing rights or not. Indeed, Romer grew out of, and explicitly relied on, earlier cases that held that laws that deny any class of persons equal rights out of prejudice or animus violate the constitutional guarantee of equal protection. The recent suggestions that Romer created a special equal protection rule only applicable to the deprivation of pre-existing rights cannot be squared with Romer's understanding of the broad sweep of the Constitution's guarantee of the equal protection of the laws.
Not only does the recent commentary fail to grapple with what Romer actually said about the text's universal guarantee of equality, but it ignores that the Court, in fact, has already read Romer broadly. In 2003, in Lawrence v. Texas, Justice Kennedy's opinion for the Court invoked Romer as one of two rulings that had seriously eroded the foundations of Bowers v. Hardwick, the Court's poorly-reasoned 1986 ruling that had upheld criminal laws prohibiting sodomy. In Lawrence, Justice Kennedy observed that Romer "struck down class-based legislation directed at homosexuals" because "the provision was 'born of animosity toward the class of persons affected' and . . . had no rational relation to a legitimate government purpose." The Ninth Circuit in Perry properly applied this very same reasoning in striking down Proposition 8. Despite the differences between Amendment 2 and Proposition 8, the Ninth Circuit correctly concluded that Proposition 8 was a form of invidious discrimination in violation of the Equal Protection Clause, "born of animosity" to gay men and lesbians and unsupported by any legitimate interest.
The thrust of the recent commentary on Perry portrays the ruling as unprincipled, an attempt to manufacture a narrow ruling without any basis in law. But Justice Kennedy's opinions show otherwise. In both Romer and Lawrence, Justice Kennedy applied rational basis scrutiny, finding in each case that the State had violated basic constitutional guarantees -- in Romer, the guarantee of equality under the law, in Lawrence, the substantive fundamental right to sexual autonomy -- without rationally furthering any legitimate interest of the government. That's exactly what the Ninth Circuit did in Perry. Applying the principles set forth in Romer as well as other precedents, the Ninth Circuit concluded that Proposition 8 discriminated against gay men and lesbians, not to further any proper legislative goal, but to decree their inequality, "to lessen the[ir] status and human dignity . . . and to officially reclassify their relationships and families as inferior . . . ." Perry got Romer, and the Fourteenth Amendment's universal guarantee of equality for all persons, exactly right.
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