COUNTING TO FOUR
ON JUNE 17, 1996, just four weeks after sternly intoning, "This Colorado cannot do," the same six-justice majority that had struck down Colorado's anti-gay Amendment 2 seemed to add, "And neither can Cincinnati."
The Supreme Court erased a Sixth Circuit decision upholding Cincinnati's very similar anti-gay amendment to its city charter, then sent the case back down "for further consideration in light of Romer v. Evans"—code meaning, "Our earlier ruling dictates the outcome of your case."
Those actions seemed to suggest that six justices were committed to using Romer on behalf of gay Americans. Perhaps more than anything else, Romer gave gay people a promise of fairness. Reading between the lines of Romer's soaring prose, it's easy to see Justices Kennedy, Stevens, O'Connor, Souter, Ginsburg and Breyer pledging not to let prejudice rule them.
Romer lectured Colorado that there is no gay exception to the Constitution's guarantee of equal protection, that government must not put its stamp of approval on anti-gay animosity. Yet for all its grandeur, that ruling generated more questions than answers: Was the court being honest in signaling gay Americans that it was no longer hostile territory? When push came to shove—as it inevitably would—how many real friends would gay Americans have? Could they count on the Romer six—or, at least, five of the six?
For four years, gay Americans waited impatiently to learn whether a majority of the court was really willing to use its first real gay-rights rul