From Romer v. Evans to United States v. Windsor: Law as a Vehicle for Moral Disapproval in Amendment 2 and the Defense of Marriage Act

This article considers the intertwined fates of Romer v. Evans and the Defense of Marriage Act (DOMA), which both date back to 1996. In United States v. Windsor, Justice Kennedy, writing for the majority, struck down Section 3 of DOMA, using Romer as a template. This article reflects on Romer as it bears on the use of law as a vehicle to express morality, in particular, “moral disapproval of homosexuality” and moral approval -- and the defense and nurture -- of “traditional, heterosexual marriage.” Proponents of Amendment 2 (struck down in Romer, in an opinion written by Justice Kennedy) and of DOMA contended these measures warded off a threat to traditional morality posed by an aggressive gay rights agenda. This article examines arguments made by the parties and their various amici curiae (friends of the court) before the U.S. Supreme Court in Romer -- nearly twenty years ago -- about whether or not Amendment 2 was a constitutionally permissible expression of moral disapproval of homosexuality and support for traditional heterosexual marriage. It also analyzes other prominent strands of argument concerning animus or antipathy toward homosexuals; protecting religious liberty and freedom of association; how to resolve the alleged clash of rights between gay men and lesbians to equality and of the “the People” to govern themselves; and which level of review courts should employ when laws classify based on sexual orientation. The article then moves forward in time to compare arguments made by the parties and their amici in the Windsor litigation. This evaluation highlights both significant change in the societal and constitutional landscape and basic continuity in cleavages over homosexuality and in forms of argument about law, morality, and homosexuality. In 2003, seventeen years after Bowers, Lawrence v. Texas, in another opinion authored by Justice Kennedy, drew on Romer to overrule Bowers. Seventeen years proved similarly fateful for DOMA. Edith Windsor, her amici, and the United States successfully enlisted Romer and Lawrence to highlight DOMA’s constitutional infirmity. BLAG and its amici either attempted to work around and distinguish Romer and Lawrence or took issue with those decisions, insisting that Justice Scalia, in his dissents, had the better view about the relationship between law and morality. Romer, Lawrence, and Windsor now make a trio of significant Supreme Court decisions, all authored by Justice Kennedy, that forge important contours of liberty and equality for gay men and lesbians in the federal constitutional order and set constitutional limits to appeals to moral approval and disapproval and the promotion of “traditional heterosexual marriage” to restrict that liberty and equality. Justice Scalia’s Windsor dissent joins his Romer and Lawrence dissents to make a trio of blistering dissents in which he accuses the majority of taking sides in a cultural and political debate about which the Constitution says nothing and branding defenders of traditional morality and traditional marriage bigots, while reaffirming his view that the constitution permits using law as a vehicle to express moral disapproval