Writing for a 6-3 majority in Romer vs. Evans (1996), Justice Anthony M. Kennedy explained that it “is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.” Laws such as Amendment 2 “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected,” Kennedy wrote, adding a reference to another 1973 ruling. “If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

Proposition 8 suffers these same constitutional flaws.