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Constitutional Commentary

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The Supreme Court's recent decision in Romer v. Evans' has caused both joy and consternation. Among legal scholars, however, it has mostly engendered puzzlement. The Court explicitly avoided the most doctrinally plausible grounds for invalidating Colorado's ban on anti-discrimination protections for homosexuals. Instead it purported to strike down the state constitutional amendment under minimal scrutiny or rational basis review. The word on the street-or, in the case of lawyers and law professors, the word on the internet-is that Romer cannot mean what it says, but instead must be a way-station to declaring homosexuality a quasi-suspect classification like gender or illegitimacy. The speculation is that the Court will eventually use Romer to strike down prohibitions on same-sex marriages and other restrictions on gay rights. We believe this line of reasoning gives the Romer majority too little credit for intellectual honesty, if perhaps too much credit for progressive impulses.2 In this essay, we suggest that the decision in Romer means no more and no less than what it says (or at least tries to say): that Colorado's Amendment 2 is invalid regardless of the level of judicial scrutiny. Moreover, we contend that this conclusion does not significantly expand current law but is instead perfectly justifiable under existing precedent. The decision also does not necessarily threaten most other restrictions on homosexuals, including bans on same-sex marriage.

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