The theory, apparently, was that homosexuals were impermissibly burdened if they had to secure special protection, equivalent to that afforded racial minorities, at the state rather than the local level. The law could be explained, the Court said, only by animosity toward homosexuals. To the contrary, any constitutional provision does what Amendment 2 did it removes from some groups the capacity to alter the law except at the state or federal level. If one took the majority s assertions seriously, as Scalia s dissent noted, state constitutional provisions prohibiting polygamy would violate the equal protection principle. The State of Utah, for example, was admitted to the Union only on condition that its constitution s prohibition of polygamy could not be revoked without the consent of the United States thus requiring polygamists to persuade the entire nation and not simply the voters of Utah.
Matters are even worse than that, however.
Under what appears to be the majority s rationale, it is difficult to see how any federal or state statute could be constitutional. Persons adversely affected by any national or state law are by definition unable to get relief at the local level. If homosexuals in Colorado were unfairly burdened by Amendment 2, then we are all unfairly burdened by the very existence of federal and state law. Since the Court has now held that the denial of special status to homosexuals is unconstitutional, Bowers must be taken to have been silently overruled. Only the newly faddish approval of homosexual conduct among the elite classes from which the Justices come and to which most of them respond.