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Lawrence's Stealth Constitutionalism and Same-Sex Marriage Litigation

56 Pages Posted: 4 Mar 2013 Last revised: 17 Mar 2013

Eric Berger

University of Nebraska at Lincoln - College of Law

Date Written: March 4, 2013


Constitutional law scholarship often focuses on two taxonomies: doctrinal categories and interpretive methodologies. Consequently, constitutional scholars sometimes neglect other important facets of constitutional decisionmaking, particularly extra-doctrinal stealth determinations that courts render frequently in constitutional opinions. The U.S. Supreme Court regularly confronts the questions underlying these determinations, but despite their centrality to constitutional decisionmaking, these issues often escape careful scrutiny.

Lawrence v. Texas exemplifies the phenomenon. Lawrence framed its central question at a broad level of generality; relied on hybrid reasoning, using equal-protection rationales to support a substantive due process holding; declined to identify a level of scrutiny; and invoked changing public opinion. Each of these moves helped the Court reach its outcome, but, significantly, the Court inadequately theorized each, leaving considerable doubt about how it would approach similar inquiries in future cases. The result is legal uncertainty. For example, cases challenging the constitutionality of state same-sex marriage bans will likely confront many of the same sub-doctrinal determinations that Lawrence purported to resolve. However, because Lawrence and other cases do so little to justify their resolution of those determinations, the Court has little to guide it when confronting those determinations again in a marriage case — or any case.

Such opacity threatens judicial transparency, consistency, and predictability. That being said, stealth determinations, paradoxically, also can help reinforce judicial legitimacy by accounting for cultural norms and providing the Court with flexibility while still preserving the appearance of impartiality. Stealth determinations, then, can simultaneously undermine and fortify judicial legitimacy, thus reflecting deep tensions in the Court’s approach to constitutional adjudication.

Keywords: constitutional law, Lawrence v. Texas, same-sex marriage, due process, equal protection, Hollingsworth v. Perry, levels of generality, tiers of scrutiny, hybrid rights, state counting, public opinion, popular constitutionalism

Suggested Citation

Berger, Eric, Lawrence's Stealth Constitutionalism and Same-Sex Marriage Litigation (March 4, 2013). William & Mary Bill of Rights, Forthcoming. Available at SSRN:

Eric Berger (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
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