A few months ago, my colleague Heather Gerken and I had the pleasure of attending a symposium at the University of Tulsa Law School to honor the work of Laurence Tribe. We both spoke on Tribe's theories of liberty and equality, focusing on the case of gay rights. Following Tribe, we think these two concepts are sufficiently intertwined that it is simplistic to argue for liberty instead of equality, or vice versa. But as we hammered out final versions of our pieces-titled " Larry and Lawrence " (Gerken) and " Tribe " (Yoshino)-we realized we had a productive disagreement about whether the courts should lead with the liberty or the equality argument. Heather favors leading with equality; I favor leading with liberty. We thought it might be productive to have a couple of rounds of that conversation here, especially because the California Supreme Court's marriage case makes both liberty and equality arguments. In Round 1, I will focus on the descriptive claim that the courts will "lead with liberty" in the future, and Heather will respond. In Round 2, Heather will make the normative claim that the courts should "lead with equality," and I will respond. As both of us continue to develop our ideas, we welcome input.
Yoshino opening post (Round 1):
I believe that if the Roberts Court does constitutional civil rights at all, it will lead with liberty rather than equality claims. Because they must give principled reasons for their decisions, the courts are institutionally incompetent to pick and choose among groups, which is what traditional group-based equality analysis requires. As the number of groups in American society proliferates, the courts will therefore be pressed inexorably away from group-based equality claims and toward universal liberty claims.
To support this thesis, I make three moves. First, I make the descriptive claim that the Supreme Court in the past decades has closed three traditional equality doors because it is worried about the slippery slope created by the "too many groups" argument. Second, I argue that even as the Supreme Court has closed these equality doors, it has pushed the liberty door further open to compensate for the foreclosure of these equality claims. Third, I observe that the Supreme Court has often used liberty claims to vindicate equality claims in the past. The Supreme Court, in other words, has always used this strategy but now has greater incentives to deploy it.
Over the past 40 years, the Supreme Court has closed off three forms of relief under the equal protection guarantees of the Fifth and 14th Amendments and the free exercise guarantees of the First and 14th Amendments. It has (1) closed the canon of heightened scrutiny classifications under the equal protection guarantees (as intimated in the 1985 Cleburne case); (2) foreclosed disparate impact causes of action (in the 1976 case of Washington v. Davis and the 1990 case of Employment Division v. Smith ); and (3) placed more limitations on what Congress can do using its Section 5 power to enforce the guarantees of the 14th Amendment (in the 1997 case City of Boerne v. Flores ).
The court has been admirably clear about why it has done so-it is worried about the "too many groups" problem. The court knows that the moment it grants protections to one group, myriad others will be on its doorstep the next day clamoring for the same protection. Of course, the court has always had the problem. But as American society has become more and more visibly diverse, the court has become more aware of its predicament. So in Cleburne , the Court denied the mentally retarded heightened scrutiny in part because it believed it could not distinguish the claims of other groups, such as "the aging, the disabled, the mentally ill, and the infirm" in a "a principled way." In Smith , the Court refused to grant religious exemptions from rules of general applicability in part because "in a nation as cosmopolitan as ours" the religions would swallow the rule. And in Boerne , the court stated that Congress could not enact the anti-discrimination legislation protecting the disabled under its Section 5 power, because of the "quite prescient" slippery-slope rationale adduced in Cleburne .
If that were the end of the story, the prospects for constitutional civil rights would be dreary. But as the Court has closed these three equality doors, it has pushed a liberty door further open. The dynamic here has been like that of squeezing a balloon, where pinching off equality jurisprudence has caused the civil rights commitments of the court to be pressed over to a collateral area of doctrine. That area of doctrine is the "substantive due process" jurisprudence.
For instance, in the 2003 case of Lawrence v. Texas , the court considered the constitutionality of a Texas statute that prohibited sodomy between people of the same sex. In striking it down, the court could have used an equality claim. Because sexual orientation has never received heightened scrutiny, this would have been a tough sell for the court, notwithstanding the 1996 Romer case. So instead, the court struck down the statute on liberty grounds, stating that it violated the right of every individual to have adult consensual sex in the privacy of his or her home.
In the next term, the court made an analogous move with respect to Congress' Section 5 powers. In Tennessee v. Lane , the court considered whether Congress could force the states to make their courthouses wheelchair accessible. In stating that Congress had this power, the court did not rely on the Congress' power to protect the rights of individuals with disabilities. That move was effectively foreclosed by the University of Alabama v. Garrett case in 2000. So instead, the court stated that Congress had the power to assure that all individuals retained the "right to access the courts."
Two swallows do not a summer make. But if we look back in time, we see that many of the canonical cases decided by the court on liberty grounds had equality undertones. The court decided both Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) on the basis of the right of parents to control the education of their children. But scratch the surface of these liberty cases and it becomes clear that they concerned the rights of national origin and religious minorities. Meyer struck down a statute that prohibited schoolchildren from learning foreign languages like German in the wake of World War I, while Pierce struck down a statute that barred children from attending parochial schools. Buchanan v. Warley , while decided as a case about the right to contract, clearly was focused on the special debilities placed on African-Americans in this area. The contraception cases ( Griswold and its progeny), as well as the abortion cases ( Roe and its progeny), focus so much on the rights of women that Chief Justice Rehnquist complained in his Roe dissent that it sounded too much like an equal protection decision. Liberty and equality are indeed intertwined, such that cases that seem to be decided on liberty grounds have often had undertones of equality. What has changed is not the strategy but the incentive to use it.
I have no quarrels with Kenji's lucid analysis of the doctrine. Nor am I unhappy that the Supreme Court in Lawrence relied on the liberty paradigm; it obviously worked. But I am puzzled by his claim that a liberty framework is the most promising path for litigation going forward because it solves the "too many groups" problem that worries the court. For the full response, click here .