Marriage This Term: On Liberty and the 'New Equal Protection'

Abstract

The story of equal protection’s demise is a familiar one. It has been decades since any new group has been afforded heightened scrutiny. Even for established protected groups, retrenchment in applicable standards has devitalized meaningful equal protection coverage. As a result, scholars such as Kenji Yoshino have contended that we are at “the end of equality doctrine as we have known it” — that we are, in effect, in a post–equal protection era. In this new era, there are minimal opportunities for securing protections under the Equal Protection Clause, and the liberty protections of the Due Process Clause have superseded equality as the primary engine of constitutional change. Yoshino names this new era the “new equal protection” and suggests that subordinated groups focus their efforts on liberty — rather than equality — in seeking civil rights protections.

This Essay suggests that reports of equal protection’s demise — and of liberty’s ascendancy — may be premature. Using the LGB marriage rights movement as a focal point — and in particular the six cases pending certiorari review at the Supreme Court this term — this Essay explores the possibility that full equal protection inclusion for new groups remains plausible, and that, indeed, the LGB rights movement may be on the cusp of securing such inclusion. The Essay discusses the implications of this possibility for Yoshino’s framework and, in particular, the strategic risks that may attach to relying on liberty-based arguments for a group that is on the cusp of achieving formal equality.

Keywords: Equal Protection, Due Process, Same-sex Marriage, Constitutional Law, Social Movements