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Marriage Equality and the Constitution's Guarantee of Equality for All Persons
Ever since the Ninth Circuit's landmark ruling last week in Perry v. Brown striking down California Proposition 8 as a violation of the Equal Protection Clause, there has been a great deal of hand-wringing about Judge Reinhardt's majority opinion, with commentators on Balkinization and Huffington Post arguing that the majority fundamentally erred in relying so heavily on the Supreme Court's 1996 decision in Romer v. Evans, authored by Justice Anthony Kennedy. As these commentators see it,Romer was a very narrow ruling, and the Ninth Circuit's reliance on it may backfire, provoking Justice Kennedy to vote to reject the Ninth Circuit's reasoning (should Perry reach the High Court). But these criticisms are hard to square with what Justice Kennedy said in Romer about the meaning of the Fourteenth Amendment's universal guarantee of equality for all persons.
One century ago, the first Justice Harlan admonished this Court that the Constitution 'neither knows nor tolerates classes among citizens. Unheeded then, these words now are understood to state a commitment to the law's neutrality where the rights of person are at stake.
Justice Kennedy returned to the core meaning of the text's guarantee of equality in the final paragraphs of the opinion, concluding that Colorado's Amendment 2 was a form of what the framers of the Fourteenth Amendment called "class legislation," a "status-based enactment" "born of animosity to the class of persons affected" that stripped gay men and lesbians of basic civil rights "to make them unequal to everyone else." These principles are hardly narrow -- they underscore that the Equal Protection Clause guarantees equality under the law to all persons, and prohibits the government from discriminating against any individuals based on prejudice, bias, or animus. The Ninth Circuit was right to rely heavily on them in Perry. Romer's equal protection framework applies to any law adopted out of class-based animus and without any legitimate state interest, whether the law takes away existing rights or not. Indeed, Romer grew out of, and explicitly relied on, earlier cases that held that laws that deny any class of persons equal rights out of prejudice or animus violate the constitutional guarantee of equal protection. The recent suggestions thatRomer created a special equal protection rule only applicable to the deprivation of pre-existing rights cannot be squared with Romer's understanding of the broad sweep of the Constitution's guarantee of the equal protection of the laws.