Romer v. Evans and Democracy\u27s Domain

As we gather at this Symposium to probe the definition of democracy in the coming century, it seems fitting to note that we are continuing a very old political conversation rather than initiating a new one. The meaning of democracy has long been contested. One of the most vexing aspects of the debate has always centered on whether and how to limit the majority\u27s prerogative to act in ways that disadvantage minorities. Viewed from a different angle, the question is how to configure the relationship between majority preferences and equality norms. It is the basic dilemma of democratic equality: What kind and measure of equality does democracy require? Formal political equality alone? Social, economic, or cultural equality as an aspect of political equality? On what basis? Although a topic of lively debate among political theorists, these questions by no means constitute a purely academic exercise. Constitutional law regularly enters this debate as courts confront laws that reflect, create, or entrench social inequality, by which I mean group-based social subordination, stigmatization, or disadvantage. When courts decide whether majoritarian laws of this kind violate constitutional equality norms, judges necessarily-if only tacitly-join the enterprise of negotiating the relationship between democracy and social equality. Cases involving a range of constitutional provisions might be understood to pit democracy and social equality against one another, though none quite as conspicuously as equal protection cases. At least since the appearance of the famous footnote four in United States v. Carolene Products Co., the intersection of democracy and social equality has been a controversial one in constitutional law, and its contours remain unsettled. Footnote four\u27s vision of democratic equality has gone largely unrealized. And, apart from scattered assertions by various justices simply pronouncing democracy to be inconsistent with discrimination without explaining why, the Supreme Court has never elaborated a clear conception of democratic equality within the context of its equal protection decisions. Last term\u27s pathbreaking decision in Romer v. Evans poses in especially high relief the dilemma of democratic equality. Romer was the Court\u27s first foray into applying the Equal Protection Clause to gays, lesbians, and bisexuals, groups long burdened by a legacy of both legal and social inequality. By a six-to-three majority, Romer struck down on equal protection grounds an expansively worded amendment to the Colorado Constitution that, at the very least, sought to bar any governmental entity in the state from protecting gays, lesbians, or bisexuals from discrimination based on sexual orientation. Amendment 2, enacted in 1992 by voter initiative, would have wiped out existing city ordinances barring discrimination based on sexual orientation, prevented state lawmakers from legislating against such discrimination in the future, and, perhaps, limited even the ability of state courts to entertain discrimination claims of any kind pressed by gay claimants

Where Does the Supreme Court Look for Guidance?

It is common, even mundane, to observe that the Supreme Court\u27s approach to statutory interpretation has become increasingly textualist in character - that is, more oriented to statutory language and the assertedly objective meaning of statutory text than to the collective subjective intent behind the legislation. The following excerpt is reprinted with permission of Stanford Law Review, 559 Nathan Abbott Way, Palo Alto, CA 94035, The confounding Common Law Originalism in Recent Supreme Court Satutory Interpretation: Implications for the Legislative History Debate and Beyond, (excerpt including tables), Jane Schactoer, Vol. 50, No. 1, 1998. Reproduced by permission of the publisher via Copyright Clearance Center, Inc. A complete and annotated version may be obtained from the author or Law Quadrangle Notes

A Moment for Pragmatism

One of the least controversial things to say about the U.S. Constitution is that it has proven very difficult to amend. The numbers are familiar. Only 27 amendments have been made since the Constitution was ratified, and 10 of those were adopted at the same time, only a few years after the original ratification. These numbers are all the more remarkable given that there have been over 11,500 attempts to amend the Constitution since it was first enacted. The paucity of amendments is also striking as a comparative matter. The national constitution that India approved in 1949 has been amended 98 times since then, and Alabama’s 1901 constitution has been amended a whopping 880 times

A Moment for Pragmatism

One of the least controversial things to say about the U.S. Constitution is that it has proven very difficult to amend. The numbers are familiar. Only 27 amendments have been made since the Constitution was ratified, and 10 of those were adopted at the same time, only a few years after the original ratification. These numbers are all the more remarkable given that there have been over 11,500 attempts to amend the Constitution since it was first enacted. The paucity of amendments is also striking as a comparative matter. The national constitution that India approved in 1949 has been amended 98 times since then, and Alabama’s 1901 constitution has been amended a whopping 880 times

Constructing Families in a Democracy: Courts, Legislatures and Second-Parent Adoption

In this Essay, Schacter examines recent judicial decisions on so-called second parent adoption, in which one partner in a gay or lesbian relationship seeks to adopt the other partner\u27s child without terminating that partner\u27s legal relationship with the child. With the recent boom of lesbian families in particular, the availability of such adoptions has been litigated in several states. Although the results have been uneven, this has been an area of significant progress for same-sex families, with courts in at least twenty-one states having authorized such adoptions. The appellate rulings in this area have been decisions involving statutory interpretation and have turned on how courts construe existing adoption laws, which are characteristically ambiguous on this point. Favorable decisions have fallen victim to claims of judicial activism, premised on the notion that considerations of democratic theory require legislatures-not courts-to decide whether second-parent adoptions will be available. Schacter examines this democratic objection and finds it lacking. She argues that even on a conventional, majoritarian account of democracy, the appellate decisions authorizing adoption are on solid ground. She then argues that this conventional account of democracy is impoverished in ways that are nicely illustrated by these cases and concludes that the cases, in fact, exemplify and are consistent with a thicker set of democratic values that emphasize social pluralism and a strong commitment to social equality

The Other Same-Sex Marriage Debate

The high profile contemporary controversy about whether to allow same-sex couples to marry has obscured an earlier debate about same-sex marriage. This previous debate took place inside the LGBT movement, where equality advocates faced off about whether marriage equality ought, as a normative matter, to be pursued. With few exceptions, this internal critique of LGBT marriage has receded. In this article, Professor Schacter revisits the earlier debate, considers why pro-equality marriage skepticism faded, reflects on how the public debate about same-sex marriage today might have unfolded differently had the marriage skeptics within the LGBT community held more sway, and suggests ways in which the largely-forgotten internal debate has relevance in the contemporary context