In the early 1990s, several cities in Colorado, including Denver, Aspen, and Boulder, enacted ordinances that prevented discrimination based on sexual orientation. In response to these laws, in 1992, the people of Colorado adopted a referendum, known as Amendment 2, that repealed any such laws in existence, and prohibited the enactment of any such laws in the future. This law was challenged in court in the case of Romer v. Evans. The Colorado Supreme Court found that the amendment violated the U.S. Constitution because it distorted the political process to place barriers to changing the law for certain groups—in this case, gays and lesbians.
In deciding this case, the Colorado Supreme Court based its decision on two opinions from the U.S. Supreme Court: Hunter v. Erickson (1969) and Washington v. Seattle School District No. 1 (1982). In Hunter, the city charter of Akron, Ohio, was amended "to prevent the city council from implementing any ordinance dealing with racial, religious, or ancestral discrimination in housing without the approval of the majority of the voters of Akron." In effect, the City Council could not pass laws prohibiting certain forms of discrimination (primarily racial discrimination).
Seattle School District No. 1 involved a statewide initiative that prohibited school boards from requiring mandatory busing for the purpose of desegregation. In other words, school districts could not mandate mandatory busing.
In both of these cases, the Supreme Court struck down the laws, finding that they created structural barriers to change the political process, such that certain groups were disadvantaged. These cases established what has been dubbed the "equal process theory." The Colorado Supreme Court found the effects of Amendment 2 bore a “close resemblance” with the laws passed in Hunter and Seattle School District No. 1, and cited those cases over 70 times.
However, on appeal, the United States Supreme Court chose not to rely on those cases. During oral argument, then-Colorado Solicitor General (and future 10th Circuit judge) Timothy Tymkovich led off with Hunter:
“Mr. Chief Justice and may it please the Court. This case involves a challenge to the authority of a State to allocate certain law making power among its State and local governments. ... The sole question here is whether in this facial challenge that statewide reservation of authority should be nullified under this Court's prior holdings in James v. Valtierra and Hunter v. Erickson," he said.
Before he could even finish his opening statement, Justice Anthony Kennedy jumped in.
“Well, Mr. Tymkovich—It may be, counsel, that we have to reach that question, but it seems to me there is a predicate or a preliminary matter that we ought to discuss at some point during your oral argument. Usually when we have an equal protection question we measure the objective of the legislature against the class that is adopted, against the statutory classification. Here, the classification seems to be adopted for its own sake. I've never seen a case like this. Is there any precedent that you can cite to the Court where we've upheld a law such as this?”
After this question, Hunter was never mentioned again.
In Romer v. Evans, Justice Kennedy's opinion for the Court stressed that it would not rely on the equal process cases, saying “we granted certiorari and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court.” The Court cited Hunter and Seattle once, in passing, as part of a long, string citation when summarizing how the trial court reached its decision. The Court did not rely on it at all.
One section arguably alludes to the process theory of Hunter, but has little bearing on the holding of the case. Instead, the Court found a violation of the Equal Protection Clause, as the law reflected nothing more than an animus towards gays and lesbians. Romer set the stage for the Court's later opinions in Lawrence v. Texas, striking down a ban on gay sodomy, and United States v. Windsor, finding unconstitutional parts of the Defense of Marriage Act.
Following Romer, the viability of Hunter and Seattle School, and the political process theory were unclear. An article by then-Professor Jay S. Bybee interrogated Kennedy’s tortured omission of Hunter: “Surely the Hunter line of decisions supported the result the Court reached; Romer was plainly within the reach of those decisions. Does the Court's failure to do more than mention that the decisions were the basis for the Colorado Supreme Court's decision suggest that Hunter was not persuasive to the Court?” Have they fallen into desuetude?
The equal process theory and Schuette
This brings us to the case of Schuette v. Coalition to Defend Affirmative Action, which was argued before the Supreme Court on October 15, 2013. This case will give the Court an opportunity to establish whether Hunter and Seattle are still viable.
In Schuette (pronounced "shooty"), the voters of Michigan passed Proposition 2, which amended the Michigan Constitution to prohibit all state institutions of higher education, and other governmental agencies, from employing any form of affirmative action, based on race, sex, religion, or other factors. Opponents of Proposition 2 challenged the law as a violation of the equal process theory in Hunter and Seattle—this amendment made it difficult for minorities to lobby for schools to utilize affirmative action. Only a constitutional amendment could reverse Prop 2. They obtained a victory in the lower court, which held that Proposition 2 places certain structural barriers in front of racial minorities, which distorts the political process.
On appeal to the Supreme Court, the challengers contest that this case is directly on point with Hunter and Seattle. During oral argument, Justice Sonia Sotomayor seemed to agree. Barely 30 seconds into the Michigan Solicitor General’s opening statement, Justice Sotomayor interposed, “Why isn't this identical to Seattle?” Justice Kennedy, who avoided the issue of deciding Romer on the basis of Hunter and Seattle, seemed to grapple with distinguishing these precedents, noting that he was having “difficulty distinguishing Seattle.” But he offered several possible distinguishing factors.
Romer v. Schuette
There are several significant distinctions between the facts of Romer and those of Schuette.
First, in Romer, the Court found that Amendment 2 “withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.” Prop 2 does no such thing. Affirmative action was in no sense a legal protection. Instead, after Grutter v. Bollinger, Gratz v. Bollinger, and now Fisher v. University of Texas, affirmative action exists as a narrowly tailored program that can be used to achieve diversity for the educational benefit of everyone, not any one particular group. In the interest of pursuing the compelling state interest of diversity in higher education, the schools could consider race as a “plus” factor.
With respect to mandatory school busing, the Supreme Court had found that it was required under the equal protection clause as a remedial measure for segregation. A specific legal protection in this context—that is, something required by law—it would seem, would be some sort of quota system, a practice patently unconstitutional following Grutter and Gratz.
Second, Amendment 2 singles out a very specific class of people—gays and lesbians. The Romer Court seized on this aspect in order to impute animus to the supporters of the referendum. In contrast, Prop 2 in Michigan is generally applicable and applies to everyone equally—that is “any individual”—notwithstanding his or her race, color, sex, ethnicity, or national origin. Amendment 2 in Michigan is not limited to people of a certain race, but rather applies to every race.
But, if this case, like Romer, is directly on point with Hunter and Seattle, the Court has two main options. It could, as it did in Romer, ignore those old precedents, and decide it on pure equal protection grounds. The Michigan Solicitor General agreed that "Romer was on all fours with Hunter and Seattle School District, because the Colorado amendment was an impediment to protection against unequal treatment." That the Court didn't cite it shows "ongoing significance [of these cases] is already waning." This would likely result in a reversal. There is no affirmative requirement for offering affirmative action. Removing it would not violate the Equal Protection Clause.
Or, it can overrule those cases. The Michigan Solicitor General specifically urged the Court to do just that if could not distinguish the case.
“If this Court concludes that Seattle School District does invalidate § 26, then Seattle School District should be overruled." The lawyer for challengers to Prop 2 concurred that the only way to rule against them would be to overrule Hunter and Seattle. “To begin, Justice Kennedy, there's no way to distinguish the Seattle case from this case nor the Hunter case.” To rule against us, he said, “both those cases have to be overruled.”
It is difficult to fathom the Court holding that a state mandating race-neutrality is in fact unconstitutional. This would seem antithetical to how the Court has viewed constitutional equality in light of the widespread controversies over affirmative action. As Justice Kennedy noted in his dissenting opinion in Grutter, “Preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.” The resolution of this case will squarely present the issue of whether the Constitution will allow the people to prohibit the affirmative use of racial preferences for minorities.
Josh Blackman is a law professor at the South Texas College of Law, Houston, and the author of Unprecedented: The Constitutional Challenge to Obamacare.
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