Romer was wrong because it failed to correctly apply the rational basis test. It’s been characterized as “rational basis with teeth,” and that phrase outlines my problem with it; it exemplifies the worst aspects of compromise. Reluctant to characterize gays as a protected class requiring intermediate or strict scrutiny, but obviously even more reluctant to let Amendment 2 stand, Kennedy chose to imbue his rational basis argument with a bit more scrutiny than had been gioven the test previously,… without ever acknowledging that this is what he was doing, because he was obviously also reluctant to create a fourth level of judicial scrutiny.
I have no problem with judicial review. If Congress were to pass a law saying, “The United States hereby establishes that the Christian religion is the national faith,” then the court system is the remedy; that law flies squarely in the face of the text of the First Amendment.
But it gets back to my quote from the book of Matthew earlier – when the decisions in reviewing the law are no longer based on the text of the Constitution, but on some supposed obvious consequence of that text, we set ourselves upon the sand. At that point, it’s relatively firm sand. When later decisions build upon that foundation, using the first ad-hoc assumption to justify two more, then our structure upon the sand grows, and the stability begins to shift a bit. And the farther we drift away from the text, the less justification the judiciary has for their pronouncements…and the shiftier our house upon the sand becomes.
So there’s not a “bright-line” rule, but the overriding principle should be judicial restraint. Judges should ask simply, “What does the law say?” and not “Is this result the best social policy?” Most especially, judges should not see themselves as architects of social policy. They should apply the analytical framework honestly regardless of the results, and leave to the legislature to fix any poor results that ensue.
This is important precisely because of what I said above: the law must yield predictable results. If judges can disregard the printed law in favor of their own sense of compassion, fairness, or social order, then we practically guarantee a lack of predictability, since not all judges will share the same view of what constitutes compassion, fairness, or social order in a given instance.
And all of this is important because it goes to the heart of what we as Americans profess to believe in: we govern ourselves. WE are sovereign; we do not surrender our sovereignty to unelected judges. But ceding to judges such sweeping power is to do exactly that: surrender, in some small measure each time, our ability to govern ourselves.