The Peculiar Geography of Direct Democracy: Why the Initiative, Referendum and Recall Developed in the American West
![handle is hein.journals/mlpr2 and id is 15 raw text is: THE PECULIAR GEOGRAPHY OF DIRECT
DEMOCRACY: WHY THE INITIATIVE,
REFERENDUM AND RECALL DEVELOPED
IN THE AMERICAN WEST
Nathaniel A. Persily*
I. INTRODUCTION
In a rare decision striking down a measure directly legislated by an
electoral majority, last year the United States Supreme Court invalidated
a citizen-initiated amendment to the Colorado Constitution which prohib-
ited any state action entitling homosexuals to a protested status or claim
of discrimination. In Romer v. Evans,' Justice Anthony Kennedy's
majority opinion found that the initiative (Amendment 2) legislated by
53 percent of Colorado voters in 1992 violated the Equal Protection
Clause of the Fourteenth Amendment. Citizen sponsored laws, like those
enacted by their representatives in the state legislature, he argued, must
conform to the baseline requirements of equal treatment outlined in the
Federal Constitution. Amendment 2 classifies homosexuals not to further
a proper legislative end but to make them unequal to everyone else.
Explained Kennedy for the Court, This Colorado cannot do. A State
cannot so deem a class of persons a stranger to its laws.2
According to Justice Antonin Scalia in dissent, the majority was
insulting Colorado's voters by supplanting its elitist political preferences
for those of an electoral majority. [Amendment 2] put directly to all the
citizens of the State, the question: Should homosexuality be given special
protection? They answered no. The Court today asserts that this most
* Jacob Javits Fellow, Institute of Governmental Studies, University of California at
Berkeley. B.A. & M.A., Yale University, 1992; J.D., Stanford Law School, expected 1998;
Ph.D., Political Science, University of California at Berkeley, expected 1999. I would like to
thank Ariela Gross, Ray Wolfinger and Paul Sabin for their helpful comments on earlier
drafts of this article.
1. Romer v. Evans, 116 S.Ct. 1620 (1996).
2. ld. at 1629. Amendment 2 reads as follows:
Neither the State of Colorado through any of its branches or departments, nor any
of its agencies, political divisions, municipalities or school districts, shall enact, adopt
or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian
or bisexual orientation, conduct, practices or relationships shall constitute or
otherwise be the basis of or entitle any person or class of persons to have or claim
any minority status, quota preferences, protected status or claim of discrimination.
Colo. Const., Art. II, § 30b. Id. at 1620.](ViewImageLocal?handle=hein.journals/mlpr2&div=6&collection=&method=preview&ext=.png&size=3)
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The Peculiar Geography of Direct Democracy: Why the Initiative, Referendum and Recall Developed in the American West
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