Thought Experiment: What If Justice Kennedy Had Approached Romer v. Evans the Way He Approached Schuette v. BAMN?

Abstract

In 1996, Justice Kennedy authored a bold — perhaps even revolutionary — opinion protecting the rights of minorities under the Equal Protection Clause. In 2014, Justice Kennedy authored yet another major equal protection decision, but this time refusing to protect minority interests — despite the undeniable factual and legal parallels between the two cases.

To emphasize the factual parallels and yet divergent outcomes in these cases, this essay presents an imagined opinion that runs the facts of Romer through the reasoning of Scheutte. The end product is virtually seamless.

Keywords: Kennedy, Romer, Schuette, equal protection