On April 22, the U.S. Supreme Court upheld an initiative approved by the voters of Michigan forbidding all state universities from having any affirmative action program for admissions, Schuette v. BAMN. Others have written and will continue to write about the merits of the various opinions in Schuette, but I have a different mission. I want to explore what’s missing from all of the opinions upholding that initiative: any mention of the court’s 1996 decision in Romer v. Evans, striking down a Colorado initiative that precluded state and local legislators from enacting or enforcing laws that provided protections for gays and lesbians.

One explanation for that might be that Romer was not cited to the court, but, in fact, it appears in the main briefs of the parties, as well as in at least five amicus briefs supporting the challengers. Nor is Romer an ancient and long forgotten opinion. Just last term, it was quoted twice with approval in the majority opinion in United States v. Windsor, striking down DOMA’s exclusion of same-sex married couples from the federal definition of marriage. Moreover, the author of Windsor—Justice Anthony Kennedy—wrote the plurality in Schuette, and Justice Sonia Sotomayor’s dissent in Schuette argued that Romer undermined the majority’s position. Thus, whatever the explanation, it cannot be that Romer never occurred to any justice in the majority.

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