Editing Romer v. Evans (section)

==Scholarly commentary==
The Court's opinion in ''Romer'' did not closely follow established equal protection doctrine (Amendment 2 "defied ... conventional inquiry" wrote Justice Kennedy), and the opinion led to much discussion by scholars and lawyers.<ref name=Wexler>{{cite book |last= Wexler |first= Jay |author-link=Jay Wexler |url= https://books.google.com/books?id=G9A9bTAuFFkC&pg=PT116 |title= The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions |page= 116 |publisher= Beacon Press |year= 2011 |via= Google Books|isbn= 9780807000915 }}</ref> One article that received widespread attention was by [[Akhil Amar]], a prominent law professor at [[Yale Law School|Yale]].<ref name=Wexler /> Amar wrote:<ref name=Amar>{{cite journal |last= Amar |first= Akhil |url= http://digitalcommons.law.yale.edu/fss_papers/936 |title= Attainder and Amendment 2: Romer's Rightness |journal= Michigan Law Review |volume= 95 |issue= 1 |pages= 203–235 |year= 1996 |doi=10.2307/1290134|jstor= 1290134 }}</ref>

{{quote|The Constitution does not require that "special" antidiscrimination rights, once extended, irrevocably vest via some magic and antidemocratic one-way ratchet.  And if Denver, Aspen, and Boulder can repeal these ordinances, presumably the Colorado legislature can repeal them by statute; and so too the people of Colorado can repeal them by state constitutional amendment (via initiative or referendum). To think otherwise is terminally silly.}}

Still, Amar asserted that Amendment 2 violated the Equal Protection Clause (although he preferred an alternative argument based on the [[Bill of attainder|Attainder Clause]]).  Regarding the Equal Protection Clause, Amar wrote:<ref name=Amar />

{{quote|Under Amendment 2, heterosexuals could win local ordinances and state laws protecting themselves from being discriminated against on the basis of their sexual orientation, but nonheteros could not win symmetric ordinances and laws.}}

Putting aside the odds of discrimination against heterosexuals, Amar suggested that even if Amendment 2 had barred special protection for both heterosexuals and homosexuals, that still would have been unconstitutional because it would single out groups by name for harm, just like a law that says "Akhil Reed Amar shall be ineligible for a private immigration bill or a suspension of deportation".<ref name=Amar />

The "one-way ratchet" mentioned by Amar has been discussed by other authors as well.<ref name=Jeffries /> For example, law professor [[John Calvin Jeffries]] has argued that the Court in ''Romer'' was actually relying upon a principle of non-retrogression, whereby "The Constitution becomes a ratchet, allowing change in one direction only."<ref name=Jeffries>{{cite journal |last1= Jeffries |first1= John |last2= Levinson |first2= Daryl |name-list-style= amp |url= http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1572&context=californialawreview |title= The Non-Retrogression Principle in Constitutional Law |journal= California Law Review |volume= 86 |issue= 6 |page= 1211 |year=1998 |doi=10.2307/3481106|jstor= 3481106 }}</ref> Jeffries and his co-author, Daryl Levinson, conclude: "the revival of non-retrogression as a constitutional principle is symptomatic of a Supreme Court adrift in an age of judicial activism."<ref name=Jeffries />

Supporters of the decision, such as law professor [[Louis Michael Seidman]], celebrated its "radical" nature, and hailed it as a revival of the [[Warren Court]]'s activism.<ref>{{cite journal |last= Seidman |first= Louis |title= Romer's Radicalism: The Unexpected Revival of Warren Court Activism |volume= 1996 |journal= Supreme Court Review |pages= 67–121 |year= 1996 |doi=10.1086/scr.1996.3109727|s2cid= 146252648 }}</ref> According to law professor Evan Gerstmann, the Court in ''Romer'' left unmentioned and unconsidered many purposes of Amendment 2 that the Colorado courts had acknowledged as legitimate.<ref name=Gerstmann /> "[T]here are no standards at all to restrict the [US Supreme] Court's discretion. ... But there are important reasons to be concerned about the Court's sloppy reasoning in ''Romer.'' While the Supreme Court's decision was widely viewed as a victory for gay and lesbian rights, it is a victory that is narrow and perhaps Pyrrhic. While ''Romer'' is something of a breakthrough for gays and lesbians, the case really represents a change in sentiment rather than a change in law. Gays and lesbians are still at the bottom of the equal protection hierarchy."<ref name=Gerstmann /> The case, says Gerstmann, "has left the law of equal protection even murkier than before. ... This is not equal protection of the laws. It is the very opposite of equal protection. It is a loose conglomeration of stated legal principles that are, in fact, ignored, and unstated de facto rules that allow courts to apply different standards to different groups at different times based on judicial sentiment rather than judicial reason. The courts can do better than this."<ref name=Gerstmann />