William & Mary Bill of Rights Journal


Jay S. Bybee


In this Article, Professor Bybee uses the debate surrounding Romer v. Evans to reexamine the Supreme Court's decision in Hunter v. Erickson and the principle that a political majority may not restructure the political process to make it more difficult for a political minority to obtain favorable government action. Professor Bybee explains the questionable bases of Hunter and succeeding cases, and then turns to the Romer decision and discusses its incongruity with Hunter. After analyzing the meaning of Romer in light of Hunter and other "equal process" cases, Professor Bybee concludes that although the Court's analysis of Colorado's Amendment 2 resembles its treatment of the laws at issue in the equal process cases, the fundamental difference in the Court's treatment of Romer and the equal process cases is that in Romer the Court failed to address the possibility of suspect classification for classes defined by sexual orientation.