Jane S. Schacter*
As we gather at this Symposium to probe the definition of democracy in the coming century, it seems fitting to note that we are continuing a very old political conversation rather than initiating a new one. The meaning of democracy has long been contested.l One of the most vexing aspects of the debate has always centered on whether and how to limit the majority's prerogative to act in ways that disadvantage minorities.2 Viewed from a different angle, the question is how to configure the relationship between majority preferences and equality norms. It is the basic dilemma of democratic equality: What kind and measure of equality does democracy require? Formal political equality alone? Social, economic, or cultural equality as an aspect of political equality? On what basis?
Although a topic of lively debate among political theorists, these questions by no means constitute a purely academic exercise. Constitutional law regularly enters this debate as courts confront laws that reflect, create, or entrench social inequality, by which I mean group-based social subordination, stigmatization, or disadvantage. When courts decide whether majoritarian laws of this kind violate constitutional equality norms, judges necessarily-if only tacitly-join the enterprise of negotiating the relationship between democracy and social equality. Cases involving a range of constitutional provisions might be understood to pit democracy and social equality against one another,3 though none quite as conspicuously as equal protection cases. At least since the appearance of the famous footnote four in United States v. Carolene Products Co.,4 the intersection of democracy and social equality has been a controversial one in constitutional law, and its contours remain unsettled. Footnote four's vision of democratic equality has gone largely unrealized.5 And, apart from scattered assertions by various justices simply pronouncing democracy to be inconsistent with discrimination without explaining why,6 the Supreme Court has never elaborated a clear conception of democratic equality within the context of its equal protection decisions.
Last term's pathbreaking decision in Romer v. Evans7 poses in especially high relief the dilemma of democratic equality. Romer was the Court's first foray into applying the Equal Protection Clause to gays, lesbians, and bisexuals, groups long burdened by a legacy of both legal and social inequality. By a six-to-three majority, Romer struck down on equal protection grounds an expansively worded amendment to the Colorado Constitution that, at the very least,8 sought to bar any governmental entity in the state from protecting gays, lesbians, or bisexuals from discrimination based on sexual orientation. "Amendment 2," enacted in 1992 by voter initiative, would have wiped out existing city ordinances barring discrimination based on sexual orientation, prevented state lawmakers from legislating against such discrimination in the future, and, perhaps, limited even the ability of state courts to entertain discrimination claims of any kind pressed by gay claimants.
The apparent tension between social equality and democracy in Romer is not subtle: by a margin of 54% to 46%, a voting majority sought to disqualify gays, lesbians, and bisexuals from securing legislative protection from discrimination. The question for the Court was whether the electorate was free to impose upon a sexual minority a categorical disqualification imposed upon no other group. The Romer majority answered in the negative. Score one for social equality, zero for democracy? Certainly that is how Justice Scalia sized it up in a dissenting opinion that can only be called blistering, even by recent standards of contentiousness on the Court. Repeatedly invoking claims about democracy, Justice Scalia pronounced it "most unlikely that any multilevel democracy can function under [the] principle" adopted by the majority opinion? …