Elements of Law 3.0 Notes and Readings III-C (Institutional Architecture of Law and Governance: The United States and Law Making--The States and the People; Popular Referenda

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law."  (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).  The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we continue to  consider section III of the materials:  III.C. Institutional Architecture of Law and Governance:  The United States and Law Making--The States and the People; Popular referendums.   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

III.C. Institutional Architecture of Law and Governance:  The United States and Law Making--The States and the People; Popular referendums. 

Notes for:

--Romer v. Evans, 517 U.S. 620 (1996) (equal protection limitations).
--City of East Lake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976) (due process limitations)
--K.K. DuVivier, Out of the Bottle: The Genie of Direct Democracy, 70 Alb. L, Rev. 1045 (2007).
OPTIONAL
--Clayton Gillette, Is Direct Democracy Anti-Democratic? , 34 Willamette I. Rev. 609 (1998). READ 620-636.

We have been examining the structure of the U.S. government and the way that it is specified and managed through a language of law rather than that of politics.  More specifically, we have been considering the way in which law structures the systems within which politics is organized in the United States.  That has involved a closer look at the way that the "higher law" of the United States, its Constitution, both constrains politics, and changes its character.  That change in character is bound up ion the last topic of section II of our materials--the role/rule of law.  We have begun to see how the relationship between law and the state in the United States, one in which law resides both outside (common, customary, and natural law along with private governance systems) and inside (statutes, administrative regulation, assessment regimes) the government. That dual positioning of law creates a political culture in which both obedience to law (as the expression of popular will) and the use of law to constrain the institutions created to express the popular will exist simultaneously, and in which the language of politics is sometimes expressed in law and the language of law is sometimes understood in political terms. Lastly, we have come to understand that the enormity of national political power may itself be constrained, though to what extent is still unresolved, by the higher powers of international law and custom, expressed either as the consensus of states (through treaties and conventions) or through the customary expectations of the international community (jus cogens--slavery, protection of ambassadors, etc.).

We have come to understand the fundamental character of the division of governmental power in the United States.  All political authority (other than that retained by the people as ultimate "owners) of national political power is divided horizontally among three branches of government (and a fourth ostensibly subordinate administrative branch) and vertically between the general government in Washington, D.C. and the governments of the states of the Union. This division of governmental power is founded on three great legal principles of political organization--separation of powers, checks and balances and federalism. There principles, in turn, are meant to further the two core principles of American political organization, two core principles may be at their heart be (consciously) irreconcilable--that power must be fractured to reduce the likelihood of tyranny by any individual or institution of government, but also that government must be organized to be efficient, to enable its institutions to meet the core objectives of government. The anti-tyranny principle is furthered by power fracture within the general government and federalism between the general government and those of the states.  The efficiency principle is also furthered by the separation of powers (but here understood as granting to each branch the power to assert its authority fully). Both efficiency and anti-tyranny principles are furthered by checks and balances--a notion that both encourages cooperation between branches to engage successfully in the business of government, but also as an anti-tyranny mechanism to the extent that no branch can govern alone (for long) without the cooperation of one or more of the other branches, or of the states.

In the process of considering first the issue of separation of powers between the president and Congress in the Steel Seizure Case, we were introduced to the two principle approaches to constitutional interpretation used by the Supreme Court to interpret and apply the structural limits of the Constitution on the powers of each branch and the need and form of necessary cooperation among them.  These two forms--formalism and functionalism, serve as the basis for a number of more precise interpretive tools that judges apply (and argue about the legitimacy of each)--textualism, original understanding and living constitution approaches to reading the text of the Constitution.  Formalism tends to privilege the text of the document over the intent of its authors or the objectives of the provision.  It suggests a narrow role for the courts--to read the text as it is written and to leave to the political branches to sort out the brilliance or folly of the words they have imposed on the people as law. Functionalism tends to view text as a gateway that is meant to serve the intent of the drafters and the objectives of the statute. Text might have to be reworked, as necessary, to ensure that the words of the specific provision at issue do not interfere or impede the objectives of the statute or the intention of its authors. (e.g., Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, edited by Amy Gutmann (Princeton, N.J.: Princeton University Press, 1997) (reviewed here); William Michael Treanor, Against Textualism, Northwestern Law Review 103:983-1006 (2009).

We also considered the complexity of separation of powers and checks and balances within a government that has vastly outgrown the original conception of state power envision in the late 18th century. For that purpose we considered the way in which the Courts have read into the U.S: Constitution a structural role for the emerging administrative state that arose in its modern forms from the late 19th and 20th centuries. What we discovered was the malleability of American legal constitutional structuralism.  What sounded like a rigid commitment ot separation of powers, checks and balances in the4 Steel Seizure Case, becomes  more protean concept when extended to the issue of the quasi-judicial, quasi-legislative and quasi-executive functions of administrative agencies,.  In place of the formalism of the structural division of authority among the three principal branches of the general government, the Supreme Court has read into the Constitution a much more flexible and forgiving power to amalgamate all power in administrative agencies (Mistretta v. U.S.) as long as they remain nominally subordinate to the principal branches of government and as long as there is some (barely) intelligible principal (Whitman v. American Trucking Ass'n).  

Today we consider the residual power of the people to make law, within the context of the federalism constraints of assertions of governmental power. Despite the organization of the general government as a Republic in which all power is exercised through representatives of the people, states have sought to permit people a direct role in the operation of the state. Our first reading, K.K. DuVivier, "Out of the Bottle: The Genie of Direct Democracy," 70 Alb. L, Rev. 1045 (2007) sets the stage for our discussion: "In the late 1800s, the Progressives unleashed the genie of direct democracy--the citizen-initiated referendum or initiative--as an alternative method of amending a state constitution or creating state level legislation." (K.K. DuVivier, supra,  1045).

Direct democracy remains popular in states that permit its exercise. A report issued by the University of Southern California Initiative and Referendum Institute described the use of direct democracy in the states between 19900 and 2012:

A total of 2,421 state-level initiatives have been on the ballot since the first ones went before the voters in Oregon in 1904, and 984 (41 percent) have been approved.
The modern initiative movement began in the late 1970s with California’s tax-cutting Proposition 13. Initiative use ex-ploded in the following decades, reaching a peak of 377 in the 1990s, 177 of which were approved. The first decade of the new century saw a total of 373 initiatives, just shy of the historical record, with 157 passing.
Twenty-four states have had at least one initiative during the period 1904-2012. Oregon continues to
be the overall leader, with 363 initiatives. California is second with 352. Colorado (218), North Dakota (183), and Arizona (174) round out the top five. (Initiative and Referendum Institute,  Initiative Use (Jan. 2013).

DuVivier argues an irony:

When they introduced the initiative process, the Progressives believed that representative government had failed because legislatures were controlled by special interests. Through the initiative genie, citizens hoped to flex their muscle and regain control of their governments. Because the initiative process allowed citizens to register their opinions by direct votes, it promised to be a valuable alternative to representative government, which had become tainted by the influences of privileged interests and partisan politics.

Genie magic, however, tends to come with unintended consequences, and modern initiative practice has not lived up to the promise of being corruption free. Because initiatives are drafted by individuals or small groups, rather than by bodies of representatives elected by the people, they are often controlled by special interests. (DuVivier, supra, 1046-47).

Others have taken a more positive view of direct democracy. (Arthur Lupia and John C. Matsusaka, "Direct Democracy: New Approaches to Old Questions," Annu. Rev. Polit. Sci. 2004. 7:463–82 (2004))  

The picture that emerges is of the initiative as a majoritarian device. As discussed above, the initiative has pushed policy in a conservative direction over the past several decades. If we put the facts together, the implication is that, over the past several decades, legislatures have tended to deliver policy to the left of majority opinion, and the initiative has provided the majority with a way to correct what they see as the mistakes of their representatives. (Ibid., 478).

An indeed, and in a more complex way, it is true that "The initiative is a direct democracy idea from Switzerland. In the 1800’s, the initiative process became a movement adopted by American Populist and Progressive political groups to challenge special interest groups. Today both special interest and grass roots groups use initiatives." (Oregon State Bar, Democracy in Action, Direct Democracy--Initiatives and Referendum).  But, of course, the American republican system was also created to constrain the excesses of majoritarian desires (Federalist 63)--that was one of the points of separation of powers and the encouragement of faction in politics and fracture in governmental structures. Clayton Gillette, "Is Direct Democracy Anti-Democratic?," 34 Willamette L. Rev. 609, 616-620 (1998) Yet Republican government is itself both founded on popular consent and meant to serve all of the people, not transient majorities to the detriment of the rest. And so people, and courts, worry about the capture of the direct democracy process by special interests its adverse effects on minorities, and that direct democracy is inherently illegitimate because it lacks the deliberative and informed approach to legislation that can be exercised by an elected legislature.  (Gillette, supra). It is on that tension that popular democracy is both lauded and feared.

In the United States, popular democracy at the federal level would present substantial difficulties.  It would represent a tear in the fabric of a tightly constructed multi-level governance system of fractured but representative power in which the people play a vital but secondary role.  They may reject the government by drawing a new constitution or they may restrain their representatives through direct lobbying or more directly by voting them in and out of office.  In states, there is greater flexibility.  But here the greatest structural constraints on the power of direct democracy exercised at the state level lies with the U.S. Constitution, and the premises of federalism.  The two cases we review, City of East Lake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976) (due process) and Romer v. Evans, 517 U.S. 620 (1996) (equal protection limitations), suggest the structural constraints of direct democracy.

City of East Lake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976) provides a useful starting point.  It suggests the rule of law framework within which direct democracy may be exercised in states.  The case touched on the tension between the legislative power of the masses represented by popular referenda and the property rights of individuals.

The city of Eastlake, Ohio, a suburb of Cleveland, has a comprehensive zoning plan codified in a municipal ordinance. Respondent, a real estate developer, acquired an eight-acre parcel of real estate in Eastlake zoned for "light industrial" uses at the time of purchase.

In May 1971, respondent applied to the City Planning Commission for a zoning change to permit construction of a multi-family, high-rise apartment building. The Planning Commission recommended the proposed change to the City Council, which under Eastlake's procedures could either accept or reject the Planning Commission's recommendation. Meanwhile, by popular vote, the voters of Eastlake amended the city charter to require that any changes in land use agreed to by the Council be approved by a 55% Vote in a referendum. (Ibid).

The City Council approved the Planning Commission's recommendation but refused to move forward until after the voter referendum. The real estate developer sued for a declaratory judgement that the referendum provision was an invalid delegation of legislative power to the people.  The U.S. Supreme Court reversed a decision by the Ohio Supreme Court which had declared the provision invalid.  The U.S.. Supreme Court noted that this argument of invalid delegation inverted the logic of the American system.

The conclusion that Eastlake's procedure violates federal constitutional guarantees rests upon the proposition that a zoning referendum involves a delegation of legislative power. A referendum cannot, however, be characterized as a delegation of power. Under our constitutional assumptions, all power derives from the people, who can delegate it to representative instruments which they create. See, e. g., The Federalist No. 39 (v. Madison). In establishing legislative bodies, the people can reserve to themselves power to deal directly with matters which might otherwise be assigned to the legislature. (Eastlake, supra).

The Ohio constitution reserved a power of direct democracy in the voters of Ohio (Ohio Const., Art. II, § 1f).  It follows that the people of Ohio could exercise this authority to the full extent permitted under the Ohio and Federal Constitutions.

The Supreme Court also disposed of the Ohio Supreme Court's conclusion that the reservation of direct democratic power constituted a violation of due process under the U.S. Constitution Amendment 14. First, the U.S. Supreme Court rejected the contention that something like the non-delegation doctrine applicable to delegations of legislative power to administrative actions applied to limit the power of popular referenda. (Eastlake, supra; on the non-delegation's doctrine, see notes Elements of Law 3.0 Notes and Readings III-B (Institutional Architecture of Law and Governance: The United States and Law Making--The Administrative Branches: The Non-Delegation Doctrine, An Introduction)). Second it noted that popular referenda were subject to the same due process limitations as other forms of legislation:

If the substantive result of the referendum is arbitrary and capricious, bearing no relation to the police power, then the fact that the voters of Eastlake wish it so would not save the restriction. As this Court held in invalidating a charter amendment enacted by referendum: "The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed." Hunter v. Erickson, 393 U.S., at 392, 89 S.Ct., at 561. (Ibid).

But the real estate developer did not raise this issue. "If respondent considers the referendum result itself to be unreasonable, the zoning restriction is open to challenge in state court, where the scope of the state remedy available to respondent would be determined as a matter of state law, as well as under Fourteenth Amendment standards. That being so, nothing more is required by the Constitution." (Ibid).

That issue was raised in Romer v. Evans, 517 U.S. 620 (1996),  an interesting case not only for its elaboration on structural legal constraints on direct democracy exercised by the citizens of states, but also because it suggests the way in which federalism itself constrains the courts in the way they may interpret the law of states when applying federal constitutional law. The central issue of the case was the extent of the power of the citizens of the State of Colorado to use their power of direct democracy under the legal constraints that the federal constitution has built into the political system of the nation.

The facts are these: In 1992 the citizens of Colorado approved, in accordance with their rules for direct democratic action, what the Colorado courts described as "Amendment 2".  The referendum and Amendment 2 represented a reaction against a number of anti-discrimination laws that had been passed by Colorado municipalities against discrimination in housing, employment, education, public accommodation, and health and welfare services. The anti-discrimination laws in themselves did not cause the reaction--it was their extension to discrimination against sexual minorities, that is  because these laws extended protection against discrimination to persons by reason of their sexual orientation. 

Amendment 2 was meant to repeal these ordinances to the extent they extended such coverage on the basis of sexual orientation.  It provided as follows;

“No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, 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. This Section of the Constitution shall be in all respects self-executing.”  (Romer, supra).

Upon its adoption, litigation was commenced to declare the provision invalid. The trial court granted a preliminary injunction  (Colo. Rule. Civ. Proc. 65) and an appeal taken to the Colorado Supreme Court, which sustained the injunction and remanded the case for further proceedings in the trial court. The Colorado Supreme Court held that Amendment 2 infringed on the rights of sexual minorities to participate in the political process under the federal Supreme Court's case law interpreting the federal constitution's prohibitions against racial discrimination in voting. (Evans v. Romer, 854 P.2d 1270 (Colo.1993) (Evans I)). On remand the trail court sustained the injunction and the Colorado Supreme Court affirmed. The federal Supreme Court granted certiorari (permitted under 28 U.S.C. § 1257) and affirmed the decision of the Colorado Supreme Court, but on different grounds. (Romer, supra).  Teo aspects of that holding are of importance to our understanding of the application of law within the domestic legal orders of the United States.  The first concerns the division of authority over the interpretation fo statutes within a federal system.  The second is the construction of constraints on popular power from the text of the "higher law" of the federal constitution.

With respect to the first issue, the Supreme Court acknowledges both the constraints of federalism on the judicial power of the general government's courts, and the relationship between those constraints and the foundational power of the Supreme Court over the interpretation of  the structural constraints on state courts and governments. The initial issue confronting the Supreme Court is a matter of the interpretation of the constitutional law of the State of Colorado--specifically the meaning of hat issue arose because the defense of the measure was based on a construction of its meaning ("The State's principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons.  So, the State says, the measure does no more than deny homosexuals special rights." Romer, supra  Part II). "We rely not upon our own interpretation of the amendment but upon the authoritative construction of Colorado's Supreme Court." (Romer, supra).

From the Colorado Supreme Court, Justice Kennedy, writing for the U.S, Supreme Court majority, described the effect of Amendment 2:

 “The ‘ultimate effect’ of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures.” 854 P.2d, at 1284-1285, and n. 26.

Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordinances the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies. (Romer, supra). 

The Supreme Court characterized the effects as touching on the public and private spheres.  It effectively treats sexual orientation as a special class beyond the political power of states to legislate, unlike other conditions that might acquire preferences via anti-discrimination statutes. Thus, Amendment 2 is read not merely to prevent the extension of nondiscrimination laws to sexual minorities, but to deny to state, county and local governments the power to extend such anti-discrimination provisions to sexual minorities, even if they wanted to.

 It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. . . . At some point in the systematic administration of these laws, an official must determine whether homosexuality is an arbitrary and, thus, forbidden basis for decision. Yet a decision to that effect would itself amount to a policy prohibiting discrimination on the basis of homosexuality, and so would appear to be no more valid under Amendment 2 than the specific prohibitions against discrimination the state court held invalid. (Romer, supra).

In effect, Amendment 2 created structural constraints on government that singled out one particular group for special treatment (no access to the political process to convince legislatures that anti discrimination laws are a good thing) while leaving the political process intact for other groups (age, military service, marital status, political affiliation, etc.). (Romer, supra).

In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. (Romer, supra).

It is in light of this interpretation of Amendment 2, the the Supreme Court was required to read its own interpretation of the 14th Amendment's prohibitions in Section III of the majority opinion.  The majority opinion starts with the general principles of 14th Amendment principles as applied to limit the power of states to legislate.

The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. * * * * We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. (Romer, supra)

 The majority applies this standard to Amendment 2 and finds that it fails to meet the very deferential  "rational basis" test.  It proffers two reasons. "First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests." (Romer, supra).

With respect to the first basis the court determined that there was no rational connection between the classification adopted and the object to be attained.

The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. (Romer, supra).

The rational basis test in this form ensures that the classification are not drawn for the purpose of disadvantaging a group singled out for special, if adverse, treatment. Rationality, in effect, posits that classification and disadvantage as essentially incidental to the object of the legislation.  Where the object of the legislation is itself the disadvantage, then rationality disappears and it follows that the statute no longer affords equal protection.  It is precisely this targeted disadvantage that the Supreme Court reads into the effect of Amendment 2. "It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence." (Ibid).  Indeed, the majority suggests, prior Supreme Court precedent suggests the need for special review of  discriminatory effects that are of an unusual character.  "The absence of precedent for Amendment 2 is itself instructive; “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38, 48 S.Ct. 423, 425, 72 L.Ed. 770 (1928)." (Ibid).

It is the unusual character of this legislative intervention in positive discrimination that most affects the majority's conclusion. Here, resort to custom and tradition is used to buttress constitutional analysis. 

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . .  Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.(Ibid).

Note that the focus on constitutional and legislative tradition is not focused on laws that had discriminated against sexual minorities (e.g., there had been a long tradition of criminalizing a variety of sexual acts ascribed to sexual minorities until the early 21st century).  Instead, the traditions referenced focused on the ability of even discriminated groups to invoke the political process to change custom and tradition of accepted discriminatory treatment.  These are citizenship rights rather than substantive rights to protection against discrimination.  Thus, while the Court was not suggesting that Colorado must adopt anti discrimination provisions protective of sexual minorities, Colorado may not create constitutional or legal structures that deny any of its citizens the right to invoke the political process to seek such legal protections, discretionary protections the adoption of which would not offend the federal constitution if adopted.

The issue, then, touches not just on the scope of the 14th Amendment, but also on the general structures of rule of law governance at the core of the American political system. It is that that issue, the effect of the principle of rule of law on the construction of the structural limitations of the federal constitution on expressions of popular will, that suggests the last point made by the majority--the premise that in a rule of law state, dislike of a particular minority who other are citizens of the United States and of the states of their residence, is an illegitimate basis for law making.

Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable. (Ibid). 

Justice Scalia, in dissent, also invokes traditions.  But in this case, the reference is to the long and until recently well accepted tradition that permitted the state to burden sexual minorities with substantial legal disabilities, including, at one point, severe criminal penalties.  (e.g., Larry Catá Backer, “Raping Sodomy and Sodomizing Rape: A Morality Tale About the Transformation of Modern Sodomy Jurisprudence,” 21 American Journal of Criminal Law 37 (1993).)

The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “ ‘bare ... desire to harm’ ” homosexuals, ante, at 1628, 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. (Romer, supra Scalia dissenting).

Justice notes that the Supreme Court had, only years earlier, agreed that the sexual practices of sexual minorities could be the basis of special treatment. If, in fact, states were free to discriminate against sexual minorities, as they had for centuries, then they should be able to create structural barriers in law to prevent anyone from liberating sexual minorities from these traditional discriminatory patterns, even if the people and legislatures of states or localities might think it a good idea.   

 If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. . . . And a fortiori it is constitutionally permissible for a State to adopt a provision not even disfavoring homosexual conduct, but merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct. (Ibid).

Indeed, Justice Scalia argues, precisely because sexual minorities may be able to marshal voter power as citizens of particular locations (cities or counties, etc.), then the State might protect itself from these local voter majorities by invoking the power of a majority of state voters to prohibit any majority of voters from re-thinking their legislation touching on the legality of people to discriminate against sexual minorities.

The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, . . . , and, of course, care about homosexual-rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. (Ibid).

The question Justice Scalia poses, then, is which set of democratic rights out to be privileged.  For him, the power of majorities to assert structural legal limits on minorities may be superior to the power of citizens to enjoy an equal access to political engagement.  The majority disagreed.  Both majority and dissent appealed to tradition.  But each applied to a distinct tradition--Justice Scalia to traditions of discrimination against disfavored groups; Justice Kennedy to traditions protecting the rights of citizenship and rule of law. The federal constitution may protect both in theory.  But in practice the Supreme court must balance the respective costs of sustaining other with reference to the protection of the fundamental principles of the American political order.  And that balancing, as Justice Scalia's dissent evidences nicely, can shift dramatically within a very short time.  Indeed,  relatively soon after Romer even Justice Scalia's appeal to Supreme Court precedent protecting the right of states to discriminate against sexual minorities was substantially undermined. Seventeen years after the decision in  Bowers v, Hardwick, the Supreme Court directly overruled that decision in Lawrence v. Texas, 539 U.S. 558 (2003), which held that anti-sodomy laws are unconstitutional.