In The New Republic, Jeff Rosen graciously linked to a piece I wrote about Schuette shortly after it was argued. I focused on the decline of the political process theory, and the fact that Kennedy did not even cite it in Romer. I predicted that Kennedy would not rely on it in Schuette. I was, apparently, right.
These “political process” cases became constitutionally controversial in the 1990s, among liberals as well as conservatives, because they seemed to call into question the constitutionality of the entire referendum process itself. For example, when opponents of a Colorado anti-gay rights amendment challenged it in 1993, their lawyers refused to rely heavily on the “political process doctrine,” even though a lower court judge had invoked it. And, as Josh Blackman presciently noted months ago, when Anthony Kennedy struck down the anti-gay rights Amendment in the landmark Romer v. Evans case in 1996, he pointedly declined to rely on the political process doctrine.
I’ll have a lot more about Romer, Schuette, and (really) Windsor tomorrow when I get more time.