THE UNPUBLISHED CONCURRENCE IN ROMER V. EVANS.

The recent release of Justice John Paul Stevens's papers for the Supreme Court's 1995 term reveals the existence of a previously unknown proposed concurring opinion in the seminal 1996 case Romer v. Evans. That proposed concurrence, co-authored by Justices O'Connor and Breyer, would have emphasized the failure of the challenged law, Colorado's Amendment 2, to satisfy traditional rational basis equal protection review, rather than the law's grounding in anti-LGB animus. Had the concurrence been published, it might have blunted the renewal of animus doctrine, with fascinating implications for subsequent constitutional doctrine involving issues as disparate as LGBT rights, immigration, and religious freedom. This Article is the first work of scholarship to identify this opinion and examine its implications. Of course, that concurrence was never published. Nevertheless, the Justices' negotiations over how much of that concurrence's content should be incorporated into Justice Kennedy's majority opinion, as recounted in correspondence in Justice Stevens's papers, teaches important lessons about the evolution of constitutional doctrine. In particular, the process by which Romer took its final form reminds us that the creation of judicial doctrine is rife with contingencies that belie any view of such creation as a straight-line process free of extraneous and distracting elements. Those lessons are important for us today, despite the fact that the proposed concurrence this Article reveals was never published. [ABSTRACT FROM AUTHOR]