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12/06/2010

Roaming Romer views: 2010 vs. 1996

by Jeremy Hooper

At a couple of points during today's Prop 8 appeal hearing, lead proponent attorney Charles Cooper worked to separate the current equality matter from Romer vs. Evans, the 1996 Supreme Court case that struck down Colorado's voter-enacted ban against recognizing gay and lesbian citizens as a protected class. Here's one, from his closing:

Screen Shot 2010-12-06 At 6.39.52 Pm
( click to play)

Convenient to knock Amendment 2/defend Romer now. But the thing is: This is not AT ALL how prominent conservatives felt back in the day!

For starters: Conservative darling Antonin Scalia based his entire Romer dissent around the idea that Amendment 2 was actually "modest":

The constitutional amendment before us here is not the manifestation of a “`bare . . . desire to harm'” homosexuals, ante, at 13, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. [Scalia's Dissent]

Scalia's whole reasoning was based on Romer *NOT* overreaching. The same way modern conservatives are surely hoping he'll see Prop 8, once that matter makes its way up the ladder.

Also, the Clinton era conservative commentariat was all about knocking the supposed "activist judges" who struck down Amendment 2. Chuck Colson, one of the most prominent and far-right-respected voices in the modern gay marriage debate, had a novel outlook for today's application, arguing that Romer had essentially opened the door that we're staring at in Perry v. Schwarzenegger:

"As we write, the courts are on a fast track to legalization. Within two years a Hawaii court is expected to declare same-sex marriage valid. And the Supreme Court is paving the way: In Romer v. Evans, it invalidated Colorado's referendum denying special legal protections to homosexuals, on the grounds that such laws create an "inevitable inference of animus." The logic of Romer could easily be used to define as bigotry any law against gay marriage (not to mention polygamy and other deviations from the traditional norm)."
10/28/96: Colson: Why Not Gay Marriage? [Christianity Today]

From his mid-90's ears to the current court's mouth, we say! At least when it comes to gays, not to the completely independent straw men that will be decided on their own merits.

Others were less into predicting what Romer would do, and instead defending Amendment 2 against the very labels that Chuck Cooper placed on it today in court. Here's Mona Charen, a conservative writer whose pieces still grace all of the usual far-right outlets, giving full-fledged mid-'90s advocacy to what Cooper painted as targeted and overreaching:

5/28/96
201012061801

The late James Kilpatrick called Romer "a blow to the democratic process," just as current conservatives commonly say of Judge Vaughn Walker's lower court Prop 8 ruling:

Screen Shot 2010-12-06 At 6.15.02 Pm
[SOURCE]

Overall, conservative dissent was pretty lacking. The line was that Prop 8 Amendment 2 was completely kosher, Walker's Perry decision Romer was wrong-headed, and gays were simply seeking "special rights." And in fact, when libertarian-conservative Dale Carpenter dared to break from prevailing wisdom, he made a point to acknowledge (with documentation) how renegade his view was among right-leaning thinkers:

Evans has been blasted in the conservative opinion pages of the National Review and the Weekly Standard, among many other popular-press outlets. Conservative legal scholars have launched a frontal assault on Evans, starting with an attack in the Harvard Journal of Law & Public Policy. These writers have called Evans “a result in search of a reason,” and “the most result-oriented decision issued by the U.S. Supreme Court since Roe v. Wade.”
A Conservative Defense of Romer v. Evans

So in fourteen years, when some other matter is in court, are we going to hear a "pro-family" attorney saying that Prop 8 was overreaching, even if enterprising eyes will be able to look back and see that the prevailing conservative wisdom of the day said otherwise? Maybe, maybe not. But we're certain that our side's principled objection to anti-gay bias will look pretty much the same, be it 1996, 2010, or some future year where basic human rights will no longer be before a judge.

***

*UPDATE: It seems some modern conservative court watchers see what we do. This from NOM's Jennifer Roback Morse:

"Cooper is trying to distinguish Prop 8 from the Romer case, which struck down a CO initiative. IMHO, he is giving away too much in agreeing with Romer. But I guess he doesn’t need to fight that fight here" [SOURCE]

"Giving too much"? As in: Agreeing for the sake of conservative convenience, not unwavering principle? Because it should be pretty strightforward.

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