Limon and S. Ct. concurrences

[Volokh, Eugene]

    I can't tell for sure whether under Romer scrutiny the STD rationale --
or the others -- are unlikely to suffice; Romer simply doesn't give us
enough information to go on.

    But as to the O'Connor concurrence, I don't quite see why the Limon
court had any obligation to consider it, any more than it has an obligation
to consider the Scalia dissent.  Lawrence has a square majority opinion;
O'Connor's vote, just like Scalia's, wasn't necessary to the majority.

    The Limon court did discuss and try to distinguish Romer; I'm not wild
about its analysis there -- or elsewhere -- but I do think that Romer is
quite distinguishable, on its very own terms.  The Romer majority, for
instance, consistently stressed the unusually broad nature of Amendment 2:
"The change that Amendment 2 works in the legal status of gays and lesbians
in the private sphere is far-reaching."  Amendment 2 deprives homosexuals of
access to "protections against exclusion from an almost limitless number of
transactions and endeavors that constitute ordinary civic life in a free
society."  "[T]he 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."  Amendment 2 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. 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." 

    State courts are bound by the Supreme Court's holdings.  They are also
bound by the fairly clear rules that the Court enunciates, and by fairly
close analogies to the Court's decisions.  But here there are ample
distinctions between Romer and this case, ample enough that I don't think
the Kansas Court of Appeals had an obligation to read Romer very broadly, or
even come up with a coherent theory of Romer that Romer itself didn't come
up with.  Nor did it have an obligation to deal with various Justices'
concurrences (or dissents) in other cases.

    I stress again:  I think the law in Limon is quite wrong, and perhaps
should be unconstitutional.  But I don't think that it is unconstitutional
under the Court's existing precedent.

    Eugene


Trevor Morrison writes:
 
 Although I'm not sure I agree with Eugene's "normal" rational basis
analysis, clearly the critical threshold issue is whether that form of
rational basis review or the more searching Romer form applies here.  If
it's the latter, it appears Eugene would agree that the STD rationale is
unlikely to suffice.  I find it rather remarkable, then, that he would
follow the Kansas court's lead in simply avoiding any discussion of Justice
O'Connor's concurrence in Lawrence, which is the only opinion I'm aware of
that actually confronts the two kinds of rational basis review and attempts
to provide some account of when each applies.  

Here's what O'Connor says:  "When a law exhibits . . . a desire to harm a
politically unpopular group, we have applied a more searching form of
rational basis review to strike down such laws under the Equal Protection
Clause.  We have been most likely to apply rational basis review to hold a
law unconstitutional under the Equal Protection Clause where, as here, the
challenged legislation inhibits personal relationships."  Eugene and others
may be unsatisfied by this account, but shouldn't we at least consider it
rather than just saying that this all comes from Romer and that Romer is too
hard to figure out?