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JUSTICE Antonin Scalia made the point with characteristic bluntness. Dissenting from the Supreme Court's 1996 decision in Evans v. Romer, Scalia protested that the majority ruling "takes sides in the culture wars." Even those who approve the result must be hard put to refute this characterization.
The Romer decision struck down a recent amendment to the Colorado constitution, adopted by popular referendum, which would bar localities (as well as the state legislature) from treating "homosexual orientation" as a prohibited basis for discrimination. Six justices held that this measure denied "equal protection of the laws" because it placed a special political burden on advocates of gay-rights measures, singling them out for such a burden for no "rational" reason. It is, to say the least, not common practice for the Court to stigmatize more than half the voters of a state as "irrational." It is simply inconceivable that the Court would overturn a state constitutional provision that, for example, imposed strict limitations on local shoreline development (as California has done)-even though such a provision would place special political burdens on advocates of development and may be regarded (at least by such advocates) as motivated by "irrational" prejudice against developers or development. The Court does not see itself as having a special role in monitoring "irrational" prejudice against developers.
Yet, for all the vehemence of his dissent, even Scalia was too restrained or too polite to broach the wider issue. By invoking the rattling term Kulturkampf (and the dissent deploys the original German expression in its very first sentence), Scalia suggested that there was something particularly unusual about the Court's posture in this case. When he protested that "the Court takes sides ... to be with the knights rather than the villains," he not only mangled his metaphor but again played off a quite unrealistic expectation. The Court has long been the central player in the contemporary American version of a culture war-and almost always on the side of elite opinion, which is to say, liberal opinion. It is indeed the Court's liberal bias that makes the Kulturkampf metaphor so apt. It is also the Court's special role, however, that has made the contemporary American culture war so much more enduring than its notorious predecessor.
The first culture...