Gerken Opening Post (Round 2)
Yesterday Kenji Yoshino and I debated whether, as a purely predictive matter, liberty or equality offers the more promising framework for litigating gay rights claims (our posts are here and here , with short essays on the topic here and here ). Today I want to address whether there is a normative reason to prefer one strategy over the other in thinking about these questions, another point of disagreement between us. I must confess that here I am more ambivalent about which paradigm is more attractive as a normative matter, in large part because (as Kenji and I have both remarked) the two paradigms are necessarily intertwined. Nonetheless, given the current legal landscape, I mildly favor equality over liberty because it comes closer to capturing what we are actually fighting about. For the full opening post, click here .
Yoshino Response (Round 2)
It's always a dangerous thing to disagree with Heather, as I have learned over half a lifetime. So, here I am glad to see our disagreement is narrower than I thought. I do normatively endorse the Lawrence tactic of "leading with liberty." But I emphasize that I do so with two significant caveats. First, equality claims can and indeed must be made outside the courts by entities more institutionally competent to make them. Second, equality claims should still find their way into Supreme Court opinions, but under the guise of defining the metes and bounds of the liberty claim at issue.
Both the glory and the bane of the courts in this country is that they are generally expected to give reasons for their decisions. But it is very hard to give principled reasons for why one group is more worthy of judicial solicitude than another. The court's most famous formulation is that "discrete and insular" minorities deserve protection. But as my colleague Bruce Ackerman argued decades ago, it may in fact be "anonymous and diffuse" minorities who have a harder time being heard in the political process. Other formulations, like those that focus on immutability or political powerlessness, are similarly unhelpful. Few would say that the capacity of religionists to convert means they are less vulnerable to discrimination. And a group must have an enormous amount of political power before it can be recognized as politically powerless by the court.
I take Heather to say that past practice has shown that the court can make more specific distinctions in the equality context than in the liberty context, maintaining, for instance, that "certain intimate conduct" is necessarily less specific than "separate ... [is] inherently unequal." Here I disagree. The quotation from Brown is that "separate educational facilities are inherently unequal," suggesting that the court is trying to put domain-based limitations on its equality principle. That cuts both ways—it cuts for Heather because it's more specific even than her quotation, but it cuts for me because it suggests that the court will have to struggle (all the way through the Johnson v. California case in 2005) to figure out to the domains beyond education for which this principle holds. More importantly, even if we cash out the principle as "separate ... [is] inherently unequal" across the board for racial classifications, it's hard to export that principle beyond race to contexts such as sex/gender or disability. It's a truism that separate bathrooms for men and women or separate learning environments for individuals with and without learning disabilities are often consistent with equality, if not necessary to it.
Of course, moving from group-based equality claims to universal liberty claims just moves the courts from one slippery slope to another. Instead of the "too many groups" problem, the court must grapple with the "too many rights" problem. But I believe the courts are much more capable of picking and choosing among rights than of picking and choosing among groups. Scholars like Amartya Sen and Martha Nussbaum have generated and defended plausibly finite lists of such rights (what they would call capabilities), but I have yet to see anyone generate and defend a plausibly finite list of groups.
To be clear, the fact that I want the courts to lead with liberty does not mean that other bodies must do so as well. Legislatures don't have to give reasons for what they are doing. If they say discrimination on the basis of age is prohibited but discrimination on the basis of gender identity is not, then that's understood to be just a matter of politics, not a matter of principle. This is the comparative advantage of political bodies and grassroots movements, and this advantage not only should, but must, be used. It would be naive, for instance, to think that the court would ever have heard Lawrence or Lane without a gay rights movement or a disability rights movement.
The last point to be made here is that when the courts internalize the equality claims, this should not be a group-based analysis that they have themselves devised. If that were the case, the liberty claim forwarded by the court would just be a Trojan horse through which the court's own equality claim was smuggled into constitutional jurisprudence. Instead, to take a leaf from theories of dialogic constitutionalism, the courts should look out to the polity to see which groups are seen to be politically powerful enough to command some legislative results or popular sympathy, but not powerful enough that they can do just fine without any judicial solicitude whatsoever.
So, to sum up, everyone should grasp Tribe's point that, despite the doctrinal separation of liberty and equality into different doctrinal categories, these two values are intertwined. We are really talking about a hybrid claim that has aspects of both liberty and equality, a claim which I will call "dignity." Which aspect of the dignity claim should be figure and which should be ground will be in part a matter of institutional competence of the body making the claim. Courts and other reason-giving bodies should lead with liberty. Legislatures, grass-roots movements, and other overtly political bodies have the option of leading with either. But when the courts lead with liberty, they should hear claims of equality that are made in voices not their own. This is the new equal protection.