A Conservative Defense of Romer v. Evans

Abstract

In his argument for an alternative conservative response to Romer v. Evans, the author outlines the majority and dissenting opinions in Evans to identify what he takes to be the decision's import. Next, he outlines some of the main themes of conservative political and legal thought, concentrating especially on Edmund Burke. He then argues the common conception of Burke as an intransigent defender of the status quo and of present traditions and practices is a misreading of him. Finally, he discusses the conservative underpinnings for Evans in light of this intellectual history, with an emphasis on the profoundly conservative instincts revealed in the Court's opinion and also on the ways in which Evans addresses fears expressed by the Framers, most notably James Madison.

Keywords: Romer v. Evans, Supreme Court, state laws, Edmund Burke, Burkean conservatism, discrimination – gays, civil rights – homosexuals, 14th amendment, equal protection