Amidst the excitement surrounding the flurry of decisions supporting gay marriage' which culminates in the United States Supreme Court's affirmation of same-sex marriage in Obergefell v. Hodges, Romer v. Evans, the Supreme Court's first step on the road to marriage equality, has not received the recognition it deserves. Yet, as its twentieth anniversary nears, Romer warrants a reexamination and greater recognition of its place in the advancement of gay rights. Decided in 1996, Romer held that Amendment to the Colorado constitution violated the Equal Protection Clause because the amendment discouraged the enactment of laws banning discrimination based on sexual orientation. The decision marked the beginning of an era in which the Court examined the discrimination faced by homosexual people differently and finally took it seriously. ...
This Article argues Romer's positive impact is attributable as much to Justice Scalia's strident, angry dissent as to the majority opinion itself. That dissent brought gay rights to the fore of the question. It argued the cause for social disfavor of homosexual behavior in the strongest of terms." However, this angry dissent, by its very association with the majority opinion, framed the majority opinion in a more overtly gay rights context. Attributing to the majority opinion a gay rights agenda, which Justice Kennedy had never enunciated, Justice Scalia effectively radicalized it. Paradoxically, this edgier makeover appealed to and energized gay rights advocates in a way that Justice Kennedy's opinion, standing alone, probably could not. Thus, Justice Scalia played a critical role in making Romer a landmark decision on the gay rights front.
Part II of this Article discusses the legal and social landscape of Romer and the looming presence of Bowers. Part III explores generally the distinctive aspects of both Justice Kennedy's and Justice Scalia's writing in Romer. Part IV discusses the Romer opinions in detail. It explains how Justice Scalia's dissent enhanced the impact of Justice Kennedy's majority opinion. Finally, Part V assesses how this "odd couple's" opinions in Romer contributed to the advancement of gay rights in America.
Sparling, Tobin A.
"The Odd Couple: How Justices Kennedy and Scalia, Together, Advanced Gay Rights in Romer v. Evans,"
Mercer Law Review: Vol. 67:
2, Article 3.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol67/iss2/3