In this article, Professors Chang and Culp propose that the Supreme Court's decision in Romer v. Evans, viewed by some scholars as a progressive case about gay/lesbian/bisexual rights, has little to do with gay/lesbian/bisexual rights as such. They argue that whatever protection Romer provides to gays, lesbians, and bisexuals is provided not because of their sexuality but, rather, despite it. The authors demonstrate their thesis by examining the racial underpinnings of the Court's opinion, which begins with Justice Harlan's famous dissent in Plessy v. Ferguson and which relies on a specific vision of color-blindness. This submerged racial jurisprudence provides the basic architecture for the Court's sexuality-blind constitutionalism. The authors are critical of color-blindness and sexuality-blindness because they preclude the Court and this nation from dealing honestly with race and sex and leave intact deeply embedded racial and sexual structures of oppression.
Robert S. Chang and Jerome Culp,
Nothing and Everything: Race, Romer, and (Gay/Lesbian/Bisexual) Rights, 6 WM. & MARY BILL RTS. J. 229