The Missing Pages of the Majority Opinion in Romer v. Evans
22 Pages Posted: 18 Oct 2015
Date Written: 1997
Abstract
This Essay was prepared for the Fifth Annual Ira C. Rothgerber, Jr., Conference on Constitutional Law, "Gay Rights and the Courts: The Amendment 2 Controversy," at the University of Colorado School of Law in October 1996.
The Essay argues that the Romer majority reached the correct result, but for reasons that it articulated only partially or not at all. It therefore goes on to provide the "missing pages" of the majority opinion in Romer. Two gaps, in particular, require filling. The first is the majority's failure to acknowledge Bowers v. Hardwick (478 U.S. 186 (1986)) and to respond to the dissent's arguments that Bowers logically requires that Amendment 2 be sustained. The second is the failure of both the majority and the dissent to discuss the implications for the constitutionality of Amendment 2 of the state's near plenary power over its political subdivisions.
Keywords: gay rights, greater includes the lesser, direct democracy
JEL Classification: K1, K10
Suggested Citation: Suggested Citation