Pamela S. Karlan
Stanford Law School
Stanford Public Law Working Paper No. 85
The Supreme Court's decision in Lawrence v. Texas, 539 U.S. - (2003), resembles its earlier decision in Loving v. Virginia, 388 U.S. 1 (1967), in several interesting ways. Loving marked the crystallization of strict scrutiny for racial classifications under the equal protection clause. At the same time, it represented a turning point, as the Court moved from the completed project of suspect-classification strict scrutiny to a new project of strict scrutiny for limitations on fundamental rights as a matter of substantive due process. Lawrence may mark a similar turning point. Forty years of case law has established that the substantive reach of liberty under the due process clause extends to the way individuals choose to conduct their intimate relationships. But just as Loving was a case about inequality that informed the jurisprudence of liberty, Lawrence is a case about liberty that has important implications for the jurisprudence of equality. In fact, liberty and equality are more intertwined in Lawrence than they were in Loving. Loving could have rested entirely on the unconstitutionality of racial subordination without looking at the importance of marriage; by contrast, Lawrence's discussion of liberty would be incoherent without some underlying principle of equality for gay people. The Warren Court often espoused substantive equal protection; the Lawrence Court attacked a suspect deprivation of liberty.
Lawrence relates to Loving in another important way. Loving drew a clear distinction between rationality review and heightened scrutiny. Lawrence, by contrast, sidesteps this conventional doctrinal framework. Lawrence does to due process analysis something very similar to what the Court's previous gay-rights decision, Romer v. Evans, 517 U.S. 620 (1996), did to equal protection analysis: it undermines the traditional tiers of scrutiny altogether. Both Lawrence and Romer express an analogical crisis. Gay rights cases can't be steered readily onto either the due process/conduct or the equal protection/status track.
Given the interdependence of equality and liberty values, what accounts for Lawrence's resistance to grounding the decision in the equal protection clause as well as the due process clause, the way the Loving did? The simplest explanation may be the Court's concern with the potential reach of an equal protection decision. Lurking only slightly under the surface in Lawrence was the question that Loving finally addressed after a decade's evasion by a cautious Court: what limitations does the Fourteenth Amendment impose on state decisions about who can marry whom? The Court may have thought that fundamental rights/due process-based strict scrutiny offers the possibility of incremental expansions of liberty while suspect classification/equal protection-based strict scrutiny seems far more binary. But the Court cannot ultimately avoid the issue by grounding gay rights decisions in liberty interests rather than in antisubordination concerns. Whatever else it may be, marriage is certainly a practice that defines many individuals' conceptions of their own existence. Thus, either the Court or the political process ultimately will have to resolve the question whether gay people's fundamental liberty interest in strengthening enduring personal bonds includes a right to invoke the state's assistance through the institution of marriage.
Number of Pages in PDF File: 22
Keywords: Lawrence v. Texas, Loving v. Virginia, equal protection, substantive due process
JEL Classification: J7, K00
Date posted: March 5, 2004
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