William & Mary Bill of Rights Journal
Robert F. Nagel, Playing Defense, 6 Wm. & Mary Bill Rts. J. 167 (1997), available at https://scholar.law.colorado.edu/articles/666.
Noting that the Romer opinion condemns the motives behind Amendment 2 without pausing even briefly to examine the social context in which it was enacted, Professor Nagel describes the decision as a model of the intolerant impulse in action. He traces this impulse to the Justices' unwillingness to examine their own role--and that of the rest of the constitutional law establishment--in creating the underlying conditions that produced Amendment 2.
In order to identify those conditions, Professor Nagel analyzes the primary document used by Colorado for Family Values during its campaign on behalf of the initiative. He argues that this document could have persuaded moderate, unprejudiced voters because its underlying themes resonate with realistic fears about the possibility that gay-rights activists might be able to induce a social revolution through law-reform strategies that bypass normal democratic processes.
Amendment 2, then, may be traceable to anxiety and alienation rather than animosity. Professor Nagel concludes that judges and legal commentators should evaluate their own role (including decisions like Romer) in shaping a political culture where large segments of the public feel unable to exercise meaningful control over sudden and massive changes that threaten deeply valued ways of life.
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