Footnotes (21)



Forgetting Romer

Susannah William Pollvogt

Washburn University School of Law

December 13, 2012

65 Stan. L. Rev. Online 86 (2013).

What are the implications of the Court’s decision to accept certiorari in Hollingsworth v. Perry? Advocates of marriage equality may worry that the Court accepted certiorari to overturn the decision. But they should also worry that the Court accepted certiorari to affirm the decision on the same, narrow legal and factual grounds relied upon by the Ninth Circuit. Because while the Ninth Circuit’s reasoning was good for marriage equality in California, it could be devastating to marriage equality efforts in other jurisdictions.

Why? The Ninth Circuit interpreted a key doctrine — the doctrine of unconstitutional animus — in a way that strips the concept of much of its justice-forcing power. It did so by (1) attaching the concept of unconstitutional animus to a narrow and unique set of facts, and (2) relying excessively on the Court’s most compromised animus decision, Romer v. Evans. To get marriage equality right, the Supreme Court will have to look past the unusual factual circumstances of Proposition 8, and the Court will have to put Romer in its proper place with respect to the Court’s broader animus jurisprudence. Ultimately, because Romer is irretrievably compromised by the historical moment at which it was decided, the Court must forget Romer.

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Date posted: December 14, 2012 ; Last revised: January 16, 2013

Suggested Citation

Pollvogt, Susannah William, Forgetting Romer (December 13, 2012). 65 Stan. L. Rev. Online 86 (2013).. Available at SSRN: http://ssrn.com/abstract=2189161

Contact Information

Susannah William Pollvogt (Contact Author)
Washburn University School of Law ( email )
1700 College Avenue
Topeka, KS 66621
United States
785-670-1665 (Phone)
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