Democracy, Kulturkampf, and the Apartheid of the Closet

Abstract

Justice Scalia's charge was that Romer is inconsistent with both the rule of law and the system of democracy. In this Comment, I join Professor Schacter and other scholars in responding to Justice Scalia's charge. Romer subserves, rather than undermines, the rule of law in America's representative democracy. I make three kinds of arguments. The first argument challenges Justice Scalia's invocation of "majority-rules" democracy as the basis for legitimate state decision making. According to the Framers' design, which guaranteed "republican" governance at both the state and federal levels, majoritarianism is not the litmus test for government legitimacy. Indeed, the Framers expected law to be shaped by courts as well as by popular majorities. The second argument combines gaylegal history with a theory of courts: A key role for the judiciary is to resist Kulturkampf, and to help the political system repudiate the legacy of Kulturkampf. A third argument is representation-reinforcing. By invalidating local rules protecting openly gay people against job discrimination, the Colorado initiative impaired the ability of lesbian, gay, and bisexual citizens to exercise their political rights. Conversely, by resisting those antidiscrimination rules, the Court was in a small way helping to restore conditions needed for the effective operation of a majority-rules democratic process.