48 Hastings L.J. 1343 (1996-1997)
The Meaning of Romer v. Evans

handle is hein.journals/hastlj48 and id is 1371 raw text is: The Meaning of Romer v. Evans
My assigned task is to talk about the importance of Romer v. Evans,'
and to speculate a bit about what effect, if any, it is going to have on the
movement for lesbian and gay rights in the coming years. I have my
trusty crystal ball ready; it has an 8 on the top of it and it usually tells
me ask again later, but we'll see what it does on this occasion.
Romer v. Evans:      Is it everything or is it nothing?     I've heard
practitioners and law professors say that Romer v. Evans really doesn't
mean anything. Some say it is an aberration, an example of a Court that
is unwilling to live with the consequences of a model of equal protection
analysis it is unwilling to modify. The Court, as must be obvious by
now, is deeply reluctant to use its more aggressive modes of review-
strict and intermediate scrutiny-on any classifications other than those
to which it already applies them (deeply reluctant may be a generous
way of putting it).2 The Court has also rejected invitations to completely
rethink equal protection analysis.3
Those two things together, according to these critics of the opinion,
mean that the classification involved in Romer-an explicit discrimination
* B.A. Yale University; J.D. University of California, Hastings College of the Law.
Mr. Colas is the Director of the National Lesbian & Gay Rights Project of the American Civil
Liberties Union. This Essay is a summer afternoon's reflection (at times, a whimsical
reflection) on a speech given March 29, 1997 at the Hastings Law Journal Symposium entitled
Intersexions: The Legal & Social Construction of Sexual Orientation. My thanks to Bill
Rubenstein, Nan Hunter, and Erwin Chemerinsky for helping me think through parts of this.
1. 116 S. Ct. 1620 (1996).
2. The illegitimacy cases are a famous example of this reluctance.  See Levy v.
Louisiana, 391 U.S. 68 (1968); Glona v. American Guarantee & Liability Insurance Co., 391
U.S. 73 (1968). City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), and Heller
v. Doe, 509 U.S. 312 (1993), are more recent instances.
3. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 98-99 (1973)
(Marshall, J. dissenting). For other examples, see Justice Marshall's concurrence and dissent in
Cleburne, 473 U.S. at 456-73, and Justice Stevens' concurrences in Cleburne, 473 U.S. at 451-
52, and Craig v. Boren, 429 U.S. 190, 211-12 (1976).


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