A quick scan of LGBTQ1-rights victories from the last two decades paints an indisputable picture of progress, a triumphant string of Supreme Court decisions that neatly illustrates the maxim that “the arc of the moral universe is long, but it bends toward justice.”2 But the real story is far more complicated. In 2022 alone, hundreds of anti-LGBTQ bills were introduced in state legislatures3 — many of which became law4 — compared to fewer than fifty in 2018.5 The sheer volume of these new measures indicates a substantial backsliding in an arena of political debate that many Americans might have assumed was settled.
What is the reason for this backsliding, and more importantly, what can be done about it? This Note will attempt to explore some of these questions through the lens of the 1996 case Romer v. Evans,6 which invalidated an anti-LGBTQ law under the Equal Protection Clause7 for the first time8 and affirmed that a “bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”9 Ultimately, this Note argues that Romer’s holding is broader and more applicable to modern circumstances than the conventional wisdom assumes. Romer thus offers a powerful alternative framework, grounded in equal protection, to challenge anti-LGBTQ laws in an era where substantive due process rights appear increasingly vulnerable.
Some litigants might understandably be hesitant to breathe new life into Romer and the Equal Protection Clause more broadly — at least as applied to LGBTQ people — for fear of setting undesirable precedent in the face of a staunchly conservative federal judiciary.10 But what makes the Equal Protection Clause a particularly attractive constitutional avenue for challenging contemporary anti-LGBTQ laws is that the Supreme Court still recognizes and applies the clause’s tier-based framework.11 This is true even as the Court continues to cast doubt on the tenability of substantive due process claims.12 Romer’s vision of equal protection may also be of use at the state level, where courts have been charting their own paths on questions of personal liberty.13
This Note begins in Part I with a survey of the legal and societal progress made over the last several decades in the realm of LGBTQ rights in order to provide context for the current state of affairs. It traces this trajectory to the present day, moving from the AIDS crisis in the 1980s, to the 2016 election, and, most recently, to the 2022 midterm elections, which were driven by culture-war debates over the visibility of queerness, particularly transgender people, in American life. Part II follows with a review of Romer and an analysis of the equal protection framework underlying the decision, particularly with regard to the Court’s application of its novel “rational basis with bite”14 standard. That Part then seeks to challenge the common wisdom that Romer was “a ticket good only for one day”15 by tracing how the Court has cited to and framed Romer as precedent in subsequent cases. Lastly, Part III uses this analysis to trace Romer’s potential application to challenges against recent state-level anti-LGBTQ laws.
I. Background
A. One Step Forward . . .
Because HIV is no longer “a certain death sentence,”16 some seem to have forgotten the existential threat that faced the queer community in the 1980s and ’90s. The epidemic “gutted [a] generation”17 and resulted in widespread hostility and fear directed at queer Americans18 — due in no small part to intentional federal inaction.19 These negative attitudes were reflected in opinion polling20 and permeated both judicial decisions and legislation: At the peak of the AIDS crisis in 1986, the Supreme Court decided Bowers v. Hardwick,21 which found no “right [for] homosexuals to engage in acts of consensual sodomy”22 and allowed states to ban sodomy between consenting adults in private.23 Then, in the 1990s, Congress enacted “Don’t Ask, Don’t Tell” (DADT), forbidding gay individuals from openly serving in the military,24 and the Defense of Marriage Act25 (DOMA), preventing legally married same-sex couples from obtaining federal benefits or recognition.26
But there were glimmers of hope as well, demonstrating that progress was possible (even if it was not inevitable). In 1996, the Supreme Court decided Romer, which held that an amendment to the Colorado Constitution that blocked the state and its local governments from providing antidiscrimination protections based on sexual orientation was unconstitutional.27 Then, in 2003, the Supreme Court decided Lawrence v. Texas,28 which reversed Bowers and declared antisodomy laws unconstitutional as violative of the fundamental due process right to privacy and personal liberty.29 Only a year later, in 2004, Massachusetts became the first state in the nation to perform and recognize same-sex marriages after a favorable ruling from the state’s highest court.30 Then, in 2010, Congress repealed DADT,31 and in 2013 and 2015, respectively, the Supreme Court struck down DOMA in United States v. Windsor32 and legalized same-sex marriage nationwide in Obergefell v. Hodges.33 Several years later, a landmark ruling from the Supreme Court in Bostock v. Clayton County34 extended Title VII protections to prohibit employment discrimination on the basis of gender identity and sexual orientation.35 Most recently, in December 2022, Congress passed the bipartisan Respect for Marriage Act,36 which formally repealed DOMA and required the states to recognize all marriages, regardless of gender, validly entered into in another state.37 In addition, the Biden Administration has expanded upon the Obama Administration’s efforts “to protect LGBTQ people from discrimination in employment, health care, housing, and education, and other key areas of life.”38
As popular support for LGBTQ rights has reached new heights, even many conservative politicians have begun to dodge the issue, and some have debuted a noticeably softened message.39 But while this may paint a rosy picture of American attitudes toward LGBTQ rights, there have been worrying signs of backsliding in recent years. Minutes after President Trump’s inauguration, the new Administration entirely scrubbed government websites of references to LGBTQ issues.40 A month later, the Administration rescinded Obama-era protections prohibiting discrimination on the basis of gender identity in schools41 and spent the rest of the year fighting against transgender students’ efforts to gain access to school bathrooms that matched their gender identity.42 Later that year, President Trump announced — via Twitter — that his Administration would seek an immediate ban on transgender people from serving in “any capacity” in the military.43 The Administration later sought to remove protections for LGBTQ people in a breathtaking array of settings, including homeless shelters, workplaces, foreign-aid initiatives, public and private health-insurance programs, adoption and foster-care programs, classrooms, school sports, and federal prisons.44 On the public health front, the Administration continuously sought to defund HIV-related public health initiatives and research programs45 — despite the ongoing epidemic that still disproportionately affects queer people.46 Meanwhile, the Department of Health and Human Services “erase[d] all mentions of the LGBTQ community and their health needs in its strategic plan” and created a “new department that shield[ed] healthcare workers [with faith-based objections] who refuse[d] to treat LGBTQ patients or those living with HIV.”47 By the end of 2017, the Administration had “forbidden” officials at the Centers for Disease Control and Prevention from using the words “vulnerable,” “diversity,” “transgender,” “evidence-based,” and “science-based” in official documents for the 2018 budget.48
B. A New Wave of State-Level Anti-LGBTQ Laws
Many commentators pinpoint the advent of the new anti-LGBTQ culture wars to Republican Glenn Youngkin’s victory in the 2021 gubernatorial election in blue-leaning Virginia.49 Then-candidate Youngkin centered his campaign on giving parents “more control” over their children’s education, particularly on topics of race,50 and openly opposed same-sex marriage, inclusive bathroom policies for transgender people, and books in schools featuring queer characters.51 Hoping to mirror Governor Youngkin’s victory, other conservative politicians emulated his playbook in the 2022 midterm elections52: they “push[ed] near-total bans on abortion . . . and rail[ed] against the alleged ‘woke indoctrination’ of public-school students on matters of gender, sexuality, and race.”53 In Texas, for example, the state Republican Party adopted an official platform with new antiqueer language, calling “[h]omosexuality . . . an abnormal lifestyle choice,”54 opposing “all efforts to validate transgender identity,”55 and supporting conversion therapy for minors.56 The platform also provided that “[n]o one should be granted special legal status based on their LGBTQ+ identification,”57 a rationale the Supreme Court explicitly rejected a quarter-century earlier in Romer.58
This rhetoric soon yielded lawmaking, forming the basis for a host of new laws targeting LGBTQ people — primarily in the spheres of education and healthcare — which this Note will revisit in Part III. These laws tend to fall within several buckets: (1) bans on transgender-related healthcare coverage in Medicaid and/or state-employee health insurance policies (eighteen states),59 (2) bans on “best practice medical care for transgender youth” (twelve states),60 (3) bans “preventing transgender youth from participating in school sports” (nineteen states),61 (4) “Don’t Say Gay or Trans” policies “that censor discussions of LGBTQ people or issues in school” (seven states) and schemes “allowing parents to opt children out of LGBTQ-inclusive curricula” (five states),62 and (5) policies forbidding “transgender students from using school facilities consistent with their gender identity” (seven states).63 In total, twenty-four states have passed at least one of these laws, affecting approximately forty percent of the estimated LGBTQ population in the United States.64
This new wave of laws is notable for its focus on rolling back protections for transgender people, particularly in the health and education realms. For decades, activists had admonished the dominant gay-rights legal apparatus for ignoring the needs of transgender and gender-nonconforming members of the queer community in order to achieve mainstream acceptance on gay rights issues like marriage equality.65 It is clear that the United States is now facing some of the consequences of ignoring these activists’ calls as the “culture wars” have begun to dominate political discourse with transgender rights caught in the crossfire.
II. Why Romer?
A. Substantive Due Process on the Lam
Only a decade or so ago, it seemed as if the Supreme Court had “moved away from group-based [equal protection] claims” and toward due process “individual liberty claims.”66 Not only did substantive due process offer the Court a robust alternative to equal protection as a means to “protect[] . . . subordinated groups,”67 but it also allowed the Court to address equality claims without fear of worsening the country’s burgeoning “apprehension of and about its demographic diversity.”68 In other words, the Court had found a way to repackage its equality-based jurisprudence without dispensing with it altogether.69 Substantive due process, rather than the Equal Protection Clause, had thus become the primary vehicle for challenging and striking down anti-LGBTQ laws.
For a while, this new approach seemed to work well, particularly in high-profile cases like Windsor70 and Obergefell.71 However, not all members of the Court were so happy with this shift. In Windsor, Justice Scalia called the Court’s due process approach to equality cases “confusing”72 and “scatter-shot,”73 suggesting that the Court should have assessed DOMA “only for its rationality” under the Equal Protection Clause alone.74 Justice Alito also dissented to express his strong opposition to expanding substantive due process, while still recognizing the ongoing validity of the Court’s “equal protection framework.”75 Likewise, in Obergefell, Chief Justice Roberts described the majority’s due process approach as “indefensible as a matter of constitutional law,” invoking both Dred Scott and Lochner to illustrate his point.76
But now that Justice Kennedy is gone,77 so too are his expansive conceptions of liberty and equality under the Due Process Clause.78 Indeed, the Court has recently embarked on the path of walking back its substantive due process precedents altogether. Beginning with Dobbs v. Jackson Women’s Health Organization,79 the Court overturned Roe v. Wade80 by returning to a stricter vision of substantive due process grounded in “history and tradition.”81 With the power of substantive due process waning, Romer offers a useful constitutional alternative for litigants seeking to challenge anti-LGBTQ laws in a manner that more closely resembles the Court’s “usual framework for deciding equal protection cases.”82 Because Romer is a “pure equal protection” decision, it may seem somewhat retro.83 It certainly feels less romantic, with no waxing prose on the meaning of human dignity. But Romer stands on its own two feet without the aid of the Due Process Clause. As Professor Kenji Yoshino has explained, “[t]here will be times when [a liberty-based due process] strategy will not be possible, and in these instances,” litigants “should fight out their claims on traditional equal protection grounds.”84
What’s curious about Romer is that some commentators have treated it as if it were “a ticket good only for one day.”85 As the argument goes, the Colorado law at issue was “unprecedented,” rendering Romer easily distinguishable.86 Even when it was decided, Romer was considered to be of limited value by some scholars due in part to its “missing pages”87 — the Court “required only six-and-one-half pages to establish the unconstitutionality of a law that it acknowledged was ‘unprecedented in [American] jurisprudence.’”88 But such understandings are unduly limiting. Romer’s missing pages — its “silences, omissions, and absences”89 — might simply have been a product of the cautious milieu of the 1990s with regard to sexual otherness, leading to analytical gaps that scholars like Professor Janet Halley argued at the time were not quite suitable for resolution yet.90 Now that more time has passed since Romer was penned, new opportunities have arisen to fill in some of the opinion’s conspicuous silences.91 In order to better understand what this might look like, this Part will offer a brief overview of Romer and identify some potential component parts of its “more searching” form of rational basis review92 — often referred to as rational basis with bite93 — which flipped the usual rational basis presumption of a law’s constitutionality.94 The Court’s later invocations of Romer, however infrequent, have demonstrated that it was not so much a one-off case limited to its facts but rather an important source of doctrine to guide courts as they embark on equal protection analyses. It is through these later cases and interpretations that one can begin to identify the underlying doctrine hidden behind Romer’s analytical silences.
True, the Court’s most staunchly conservative members would likely resist such a shift back to equal protection — both Justices Thomas and Alito have consistently opposed recognition of LGBTQ rights under any framework.95 But other conservative Justices have shown a willingness to let the law evolve to protect the rights of queer people in at least some contexts, with Bostock serving as one obvious example.96 Even Chief Justice Roberts acknowledged that an equal protection approach might have been tenable in Obergefell had the Court been faced with “a more focused challenge to the denial of certain tangible benefits.”97 So too did Justice Alito briefly recognize in Dobbs that “invidiously discriminatory animus” could pose an equal protection problem.98 And even if the Court might not yet be ready for new equal protection challenges to anti-LGBTQ laws, Romer has not been overruled and its framework remains good law, making it an attractive option for litigants to pursue in the lower courts.99 So while Romer may be dormant, it is certainly not dead. It “clear[ed] away obstacles and open[ed] up possibilities”100 and “forged a foundation for future equal protection challenges to laws borne out of animosity.”101 That future has simply not yet been pursued.
B. A Romer Refresher
In Romer v. Evans, the Supreme Court struck down a referendum, known as Amendment 2, that amended Colorado’s constitution to prohibit “action at any level of state or local government designed to protect . . . homosexual [and bisexual] persons” and repealed all such existing protections at the local level.102 Because the amendment created a classification (one based on sexual orientation), the Court analyzed the law under the Equal Protection Clause; to withstand equal protection scrutiny, a law must, at minimum, “bear[] a rational relation to some legitimate end.”103 In Romer, the “primary rationale” for Amendment 2 was “respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality.”104
Ultimately, the Court rejected these justifications, holding that the amendment could not withstand even rational basis review, the most deferential standard. While the majority acknowledged that rational basis review is generally quite forgiving — a law can survive “even if [it] seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous”105 — it still found Amendment 2 “at once too narrow and too broad” because it “identifie[d] persons by a single trait and then denie[d] them protection across the board.”106 The Court reasoned that such laws are “so far removed from [their] justifications”107 that they “raise the inevitable inference that the disadvantage imposed is born of animosity toward the [affected] class,”108 thus making it “impossible to credit” the State’s purported rationale.109 These “constitutional difficulties”110 were further amplified by the fact that queer Coloradans faced a unique political disadvantage: in order to protect themselves against discrimination, they would be forced to pursue a new constitutional amendment by appealing to the very statewide group of voters that denied them protection in the first place.111
Admittedly, the Romer opinion was brief, and the Court spent little time sorting through the State’s justifications. But even Justice Scalia seemed to agree with the majority’s inference that the law was motivated by animus, although he saw no constitutional infirmity with a state law justified by “animus” toward “reprehensible” conduct, so long as one defines animus as “moral disapproval.”112 He emphasized that Bowers — which allowed states to criminalize sodomy — was still good law and reasoned that “surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in [criminalized] conduct.”113 Justice Scalia also added that he believed voters were “entitled to be hostile toward homosexual conduct”114 and considered it “no business of the courts . . . to take sides in this culture war.”115
From these dueling opinions, one can ascertain several key factors that allowed the Romer Court to give less weight to Colorado’s purported interests and strike down Amendment 2 via rational basis review: (1) the fact that the targeted class was politically limited in its ability to challenge a law that “impose[d] a special disability upon [them] alone,”116 (2) evidence suggesting that the law was motivated by “animus”117 or “moral disapproval”118 of an unpopular class, and (3) the “unprecedented” nature of the law.119
C. Treatment of Romer in Subsequent Supreme Court Caselaw
This section will review the Court’s employment of Romer since the case was decided in 1996 in order to determine the scope and contours of its precedential value in contemporary challenges to laws creating classifications based on queer identity. Although the Court has nodded back to Romer only a handful of times — often in passing — each such instance offers a new gloss on the case, yielding new clues to help decipher its blurry doctrinal puzzle and fill in its silences. Building on the factors identified in the previous Part, this Note identifies three elements that subsequent invocations of Romer have reinforced when deeming an anti-LGBTQ law unconstitutional: (1) political-process dysfunction, (2) animus inferred from moral disapproval, and (3) discrimination of an unusual character. Commentators have often treated animus as Romer’s primary determinative inquiry,120 but this factor alone was not what allowed the Court to flip the conventional presumption of rationality.121 The Justices’ subsequent references to Romer have demonstrated the continued relevance of all three elements, even if they may not be exhaustive or jointly necessary to compel a finding of animus.
1. Political-Process Dysfunction. — Shortly after the Court decided Romer, it had to confront the implications of its holding upon consideration of an appeal from the Sixth Circuit case Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati.122 In that case, the court of appeals considered the constitutionality of an amendment to Cincinnati’s local charter that forbade the city from granting individuals “protected status, quota preference, or other preferential treatment” on the basis of their sexual orientation.123 On its initial review — before Romer had been decided — the Sixth Circuit upheld the law, but the Supreme Court vacated and remanded for reconsideration in light of Romer.124 On remand, the court of appeals again upheld the amendment, explaining that the two cases involved “substantially different enactments of entirely distinct scope and impact, which conceptually and analytically distinguished [their] constitutional posture[s].”125 Unlike the Colorado amendment, reasoned the court, the Cincinnati amendment did not have a “sweeping and conscience-shocking effect” because it was purely local in nature and merely eliminated preferential treatment on the basis of sexual orientation, “leaving untouched the application, to gay citizens, of any and all legal rights generally accorded by the municipal government to all persons as persons.”126 Accordingly, the Sixth Circuit found it unnecessary to perform an “extra-conventional” Romer-style application of equal protection principles.127 Subsequently, the Supreme Court denied certiorari, keeping the Sixth Circuit ruling in place.128
The precedential value of certiorari denials is limited at best.129 But even if one views the Court’s denial of certiorari as an indication that it agreed with the Sixth Circuit’s assessment of Romer as a narrow case limited to its facts, one can still read Equality Foundation as compatible with the idea that Romer was concerned with statewide deficiencies in the political process that make it more difficult for marginalized groups to advocate for or against laws that implicate them as a class.130 What the Romer Court did not do, however, was adopt a strong version of the so-called political-process doctrine, which would require courts to apply strict scrutiny to laws that infringe on “the fundamental right to participate equally in the political process.”131 The majority appeared to “implicitly reject[]” this test as advanced by the Colorado court below.132 But, as Justice Sotomayor later articulated, Romer still “resonates with the principles undergirding the political-process doctrine,”133 even if the Supreme Court has rejected its scrict scrutiny test.134 In this way, Romer can be read as having considered statewide political-process dysfunction as one of several factors that indicate that a challenged law lacks “a rational relationship to a legitimate governmental purpose.”135 Romer, therefore, could provide compelling support for a law’s lack of a rational basis where statewide political-process dysfunction may be implicated.
2. An Inference of Animus Based on Moral Disapproval. — After Romer, the Court did not substantively address the case until Lawrence in 2003. In Lawrence, the Court overruled Bowers and invalidated a Texas law criminalizing only same-sex sodomy.136 Although the Court cited Romer as a “principal case[]” that militated against retaining Bowers,137 the Court ultimately decided Lawrence on the basis of due process.138 Writing for the majority, Justice Kennedy called the petitioners’ Romer-based equal protection argument “tenable” but explained that the Court chose the due process route to avoid the implication that “a prohibition [on sodomy] would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.”139 The Court also believed that due process principles better addressed the implications of the “stigma” wrought by the Texas law.140
Although the Lawrence majority found it unnecessary to conduct an equal protection analysis, Justice O’Connor’s concurrence provides some insight into how the Court might have done so. Citing Romer, she emphasized that the Court has “applied a more searching form of rational basis review” when “a law exhibits . . . a desire to harm a politically unpopular group.”141 She understood Romer to hold that “[m]oral disapproval of a group cannot be a legitimate government interest” and that “the Equal Protection Clause prevents a State from creating ‘a classification of persons undertaken for its own sake.’”142 Although Texas argued that it was “not discriminat[ing] against homosexual persons” but rather “only against homosexual conduct,” Justice O’Connor believed that conduct and identity were so “closely correlated” that the law “‘raise[d] the inevitable inference that [it was] born of animosity’ . . . toward gay persons as a class”143 and treated them as “presumpti[ve] . . . criminal[s].”144
In this way, as expounded by Justice O’Connor, Romer is particularly powerful because the majority inferred animus rather than taking the state at its word.145 This stands in stark contrast to traditional rational basis review — sans “bite” — wherein the “challenger of a law has the burden of proof,” meaning the law will be upheld even if the government offers a rationale that is not “the actual purpose of the legislation, but rather any conceivable legitimate purpose.”146 This understanding of Romer could thus supply a powerful tool for inferring animus in future cases and also reinforces the plausibility of the hypotheses of scholars in the 1990s who suggested that Amendment 2’s “odd and obsessive singling out of all nonstandard sexual orientations” supplied “a subtle cue, a Freudian slip that old fashioned animus was afoot.”147
3. Discrimination of an Unusual Character. — The Court did not substantively revisit Romer until a decade later, when it invalidated DOMA in Windsor. Even then, it was cited only briefly for the proposition that “[i]n determining whether a law is motivated by an improper animus or purpose, ‘“[d]iscriminations of an unusual character”’ especially require careful consideration.”148 Writing again for the majority, Justice Kennedy reasoned that “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage” was “strong evidence of a law having the purpose and effect of disapproval of that class.”149 Harkening back to Lawrence’s emphasis on stigma, Justice Kennedy elaborated that the “avowed purpose and practical effect” of DOMA was “to impose a disadvantage” and “a separate status” on same-sex couples: Based on the law’s history and text, it was clear that this “interference with . . . equal dignity” was “more than an incidental effect of the federal statute. It was its essence.”150 Although the Court ultimately decided the case on due process grounds (as in Lawrence), it still found that “the equal protection guarantee of the Fourteenth Amendment makes [the] Fifth Amendment right all the more specific and all the better understood and preserved.”151
The next and most recent case in which the Court substantively addressed Romer was Trump v. Hawaii.152 In that case, decided in 2018, the Court upheld an executive order by President Trump — commonly referred to as the “Muslim ban”153 — that barred foreign nationals from several Muslim-majority nations from entering the country for three months.154 Notably, this case was the first in which the Court distinguished Romer to uphold a law. Quoting Romer, the Court explained that “[i]t [could not] be said” that the executive order was “‘inexplicable by anything but animus’ . . . because there [was] persuasive evidence that the entry suspension ha[d] a legitimate grounding in national security concerns, quite apart from any religious hostility.”155 Justice Kennedy, the deciding vote and the original author of Romer, “join[ed] the Court’s opinion in full”156 and offered a brief concurrence that reinforced Romer’s animus rationale: citing only to Romer, Justice Kennedy emphasized that, while the Executive is typically given “substantial deference . . . in the conduct of foreign affairs,” this “does not mean those officials [who are accorded broad discretion] are free to disregard the Constitution and the rights it proclaims and protects.”157 This treatment in Trump v. Hawaii again demonstrates Romer’s potential to support inferences of animus in future cases over anti-LGBTQ laws.
D. Deriving a Romer-Based Equal Protection Framework
What does this handful of cases tell us about Romer’s lasting value? Scholars typically interpret Romer as having applied rational-basis-with-bite review, allowing the Court to apply a flavor of heightened scrutiny158 without formally doing so.159 Although there is not a commonly agreed-upon definition of rational basis with bite — the Court has certainly remained vague160 — some commentators have rightly understood Romer as an attempt to offer heightened protection for politically unpopular groups whose members are at risk of being “relegated to outcast status.”161 The reach of this kind of judicial protection has the potential to be quite sweeping — even Justice Scalia recognized the theoretical scope of Romer’s modified rational basis test, understanding it to “at least mean . . . that laws exhibiting ‘a desire to harm a politically unpopular group,’ are invalid even though there may be a conceivable rational basis to support them.”162 Similarly, shortly after Romer was decided, Professor Andrew Koppelman argued that the case stood for the proposition that “[l]aws that discriminate against gays will always be constitutionally doubtful . . . because they will always arouse suspicion that they rest on a bare desire to harm a politically unpopular group.”163
Accordingly, Romer does more than offer a mere twist on the most lenient tier of review. Instead, it stands for the proposition that “government objectives steeped in animus” can never be legitimate.164 This flips on its head the typical rational basis standard, which presumes rationality and “rarely invalidates legislation.”165 Romer thus offers a potent tool for challenging anti-LGBTQ laws when animus might be afoot, even in the realms of health and education, where courts have traditionally afforded states significant lawmaking deference.166
III. Applying Romer
As gleaned from the analysis undertaken in the previous Part, this Note proposes three recurrent considerations that litigants might employ when pursuing a Romer-style argument to challenge an anti-LGBTQ law as presumptively irrational under the Equal Protection Clause: (1) Does the law implicate a classification based on a group’s identity or conduct? (2) If so, is that group an unpopular one that lacks functional access to the political process? (3) Was the law explicitly or implicitly motivated by animus, or an attempt to classify for classification’s sake? This Part will look at each of these factors in more detail, using the anti-LGBTQ laws discussed in Part I as guides where applicable. Importantly, this Note does not advocate for applying these three elements as part of an inflexible test, but rather as one possible formulation of a framework for litigants, scholars, and courts seeking to assess contemporary antiqueer laws under a more “traditional” equal protection inquiry.
A. Does the Law Create an Identity- or Conduct-Based Classification?
This first inquiry is not unique to Romer but is nonetheless essential: at its core, the Equal Protection Clause requires that the government “treat similarly situated individuals in a similar manner” when “classify[ing] persons or draw[ing] lines when creating and applying laws.”167 What makes recent anti-LGBTQ laws different from those of the past is that these new laws almost never explicitly use identifying terms like “transgender” or “homosexual,” meaning that one must read between the lines to ascertain whether a law creates an impermissible classification. This, however, should not serve as a barrier to an equal protection argument. The Windsor Court recognized that DOMA created a classification based on sexual orientation168 even though the law never used any such term.169 It follows, then, that laws can classify based on queer identity without needing to be so explicit. Arkansas, for example, recently banned gender-affirming medical care for minors who “go[] from identifying with and living as a gender that corresponds to his or her biological sex to identifying with and living as a gender different from his or her biological sex.”170 This clearly creates a classification based on gender identity even though the statute never uses the word “transgender.”
Other laws, like Florida’s “Don’t Say Gay” law,171 are more atypical because they do not directly withhold some privilege or benefit from an LGBTQ population. Yet there is still an equal protection argument to make in this context because the Florida law singles out a group of people (the entire LGBTQ population) and prevents their stories and histories from being taught or discussed in schools.172 This is roughly analogous to the federal district court case González v. Douglas,173 in which the court found a race-based equal protection violation when the State of Arizona passed legislation to eliminate the Tucson Unified School District’s Mexican-American Studies Program.174
B. Does the Class Lack Functional Access to the Political Process?
This question starts to engage specifically with Romer’s conception of animus, which was core to its rational-basis-with-bite analysis. As explained above, political-process dysfunction likely contributed to the divergent results in Equality Foundation (assessing Cincinnati’s ordinance) and Romer (assessing Colorado’s amendment). One explanation is that when a group lacks adequate access to the political process (as was the case in Colorado), laws that expressly target the members of that group might constitute a violation of their right to equal protection.
While political-process dysfunction could take many forms, partisan gerrymandering is one example of a policy that clearly inhibits the ability of queer people to challenge discriminatory statewide laws through legislation. Although the Court deemed partisan-gerrymandering claims federally nonjusticiable in Rucho v. Common Cause,175 it has still acknowledged that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust” and that are “incompatible with democratic principles.”176 Due to partisan redistricting over the last two decades, the number of competitive districts has continued to shrink.177 After the 2020 redistricting in Texas, for example, there remained only three competitive districts in the entire state — out of thirty-eight.178 Politicians in some states have gerrymandered themselves into sizeable majorities so effectively that in Wisconsin, for example, it seemed possible that Republicans could gain a veto-proof legislative supermajority in 2022 without breaking fifty-percent support statewide.179 Of course, both major parties partake in gerrymandering,180 although LGBTQ people overwhelmingly identify as members of the Democratic party,181 and only Republican legislatures have pursued anti-LGBTQ legislation in recent years.182 The upshot of this is that gerrymandering presents a political-process issue for queer people only in states with gerrymanders that disadvantage Democratic voters. When mapmakers maximize the number of Republican seats in state legislatures at the expense of Democratic ones, queer people are deprived of a voice in the statewide legislative process for challenging laws that target them as a class.183
C. Was the Law Explicitly or Implicitly Motivated by Animus?
Even if partisan-gerrymandering claims are themselves nonjusticiable, partisan mapmaking still has a measurable impact on the demographic composition of electorates in state legislative districts. Not only does this raise political-dysfunction questions, but it also “raise[s] the inevitable inference” of animus184 due to the implication that culture-war laws like Florida’s were created not to further a legitimate state interest but rather to create “a classification of persons undertaken for its own sake”185 based on a party base’s moral disapproval of a minority group. In noncompetitive districts, politicians face their most competitive races in primary elections,186 resulting in little incentive to stake out moderate, widely popular positions. Instead, Republican candidates win primaries by appealing to their base, which tends to be less diverse187 and more extreme188 than the general electorate. Furthermore, although the number of Americans who identify as religious has continued to shrink, those who remain religious have been increasingly moving toward the Republican Party, thus increasing their influence in party primaries.189 At the same time, the reduction in religiously affiliated adults overall has meant that the Republican Party has had to increasingly rely on “broader culture war issues” that appeal not only to religious conservatives but also to cultural conservatives regardless of religiosity.190 These factors together suggest that many anti-LGBTQ laws rest upon moral disapproval of LGBTQ Americans, rather than some legitimate state interest such as education or public health; this runs against Romer’s express rejection of the notion that a law can be justified purely on the basis of “personal or religious objections” to a particular group and its practices.191
Several other factors might augment such an inference. As one scholar has put it, “Romer endorses the proposition that insane delusions are precisely those things that do not and cannot survive rational basis review.”192 Accordingly, an inference of animus or moral disapproval might be supported by a law’s lack of support from legitimate medical or pedagogical sources. Antitransgender healthcare bans, for example, are at odds with the medical consensus that has been “forcefully affirmed by the country’s leading medical organizations, from the American Medical Association . . . to the American Psychiatric Association . . . to the American Academy of Pediatrics.”193 Likewise, educational organizations such as the National Education Association have mobilized against antiqueer curriculum bans.194 When a law purports to legislate on the basis of public health or education but has no support from the literature or experts in those fields, it becomes easier to infer that a law is “inexplicable by anything but animus.”195
Comments by lawmakers and other officials might also support such an inference, given that many such figures have recently couched their lawmaking rhetoric in terms of moral disapproval. For instance, Florida Governor Ron DeSantis’s press secretary tweeted that anyone who opposed the state’s “Don’t Say Gay” bill is “probably a groomer or at least [doesn’t] denounce the grooming of 4–8 year old children,”196 playing on the decades-old homophobic trope that “gay people somehow are molesting kids, or after kids, or predatory.”197 True, the text of most recent anti-LGBTQ laws make no mention of morality, purporting to rely on other findings grounded in public health and education. But Romer was unique in how the Court inferred animus even when it was not a rationale offered by the state. Since Romer flips the presumption of rationality, a Court need not take a state at its word and can find that animus, or a classification for classification’s sake, was an anti-LGBTQ law’s primary motivator; this is true regardless of a state’s other purported justifications, even if they lie in traditional state domains.198
Conclusion
This Note seeks to encourage a renewed look at Romer and its unique conceptions of equality and rationality in order to revive a lively conversation about queer rights and the Equal Protection Clause that was cut short by a fruitful but short-lived detour down the path of substantive due process. As novel iterations of laws targeting queer identity make their way through state legislatures, an alternative constitutional avenue for challenging them would be to identify and apply the factors that allowed the Romer Court to infer animus and flip the presumption of rationality to strike down a class-based law without applying a heightened form of scrutiny, factors that might include signs of political-process dysfunction, moral disapproval, and novelty. Against the conventional wisdom, this Note argues that Romer was not merely a one-off case but rather a fork in the road, a preview of what might have been had the courts and litigants decided to pursue equal protection over substantive due process in the fight for queer rights. By taking the time to revisit Romer and its implications for the future of equal protection, we make possible a return to the Court’s promise that a “classification of persons undertaken for its own sake” is “something the Equal Protection Clause does not permit”199 and that a “bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”200 In the meantime, let us hope that the requiems for Romer were written far too soon.