Democracy is indeed an elusive concept and any effort to develop the constituent elements of so important a political idea ought to be encouraged. From any number of perspectives it is clear that democracy must include more than simply ratifying the outcomes of either citizen or representative voting.l And when a court is asked to set aside the results of a process some describe as democratic, the challenge to enrich the concept becomes even more pressing, particularly when the judicial power is invoked in the name of enhancing democracy.2 The Supreme Court's decision in Romer u. Evans3 dramatically poses the problem. The Court there invalidated a state constitutional provision that had been adopted by a direct vote of the citizens of the state of Colorado. For Justice Scalia in dissent, it was inconceivable for the Court to set aside this purest expression of democracy.4
In her Article, Professor Schacter addresses the challenge posed by Romer, and in doing so seeks to broaden and enrich the concept of democracy. Professor Schacter rejects the narrow, conventional approach that undergirds Justice Kennedy's majority opinion and the Court's general equal protection analysis. Rather than focusing-as the Court does-on the problem of the rights of the minority to be free from majority abuse, Professor Schacter attempts to offer two substantive refinements to the idea of democracy.
First, Professor Schacter argues that democracy must include a fundamental right to participate in the political process.5 Thus, the evil of the law in Romer was not just majority discrimination, but the ultimate disenfranchisement of gays from the political process. With no ability to seek the protection of the government, gays were virtually frozen out of the ordinary give and take of interest group politics. Second, Professor Schacter argues that democracy must include the social dimensions of citizenry and identity.6 These social dimensions of democracy occur outside of formal law and outside of what is normally considered the political process, at the most basic of citizen-to-citizen relations in society. This world-the non-legal, nonpolitical-is the arena in which norms evolve that define our daily freedoms, where attitudes are formed and roles created, and where the most fundamental structures of human interaction are put in place.7 Full participation in this social sphere is a central component of what it means to be a citizen in a democracy. For Professor Schacter, these two refinements better explain the result in Romer, and are part of her larger project to develop a broader, more substantively enriched vision of democracy.8
There is much to agree with in Professor Schacter's Article, and it certainly offers us a better understanding of the result in Romer v. Evans and the concept of democracy. She offers two specific components of what she claims to be a fuller account of democracy-citizen participation in the political process, and an inclusion of the social sphere. My disagreement with the Article is where it leaves off. Claims that democracy must or should include certain spheres of action or protect certain participatory rights (more than or in addition to others) are useful points for departure, yet eventually they require a more robust defense, or at least a more detailed description of how these components-political participation and the social sphere-operate in a democracy.9 Failure to provide the latter places the former on shaky ground, or worse yet, such claims can be misunderstood as mere exhortations to design a system of democracy along the lines suggested. Yet the facts, background, and context of Romer v. Evans provide an opportunity to detail a richer account of the mechanics of democracy, and to describe a normative defense for the claims that are implicit in Professor Schacter's effort. I offer three propositions, drawn from Romer v. Evans, that at least ought to be explored in Professor Schacter's account of democracy. …