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Yoshino-Gerken on the Liberty/Equality Debate

By Jack M. Balkin

Today and tomorrow, Kenji Yoshino and I will be debating two questions related to last week's same-sex marriage decision by the California Supreme Court, which rested its ruling on both equality and liberty grounds. Today we discuss whether, as a practical matter, equality or liberty represents the most promising framework for future gay-rights litigation. Kenji's opening remarks can be found here.

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. As I explain here, the "too many groups" problem inheres in the liberty analysis as well, though it takes a slightly different form. Call it the "too many individuals" problem. Recognizing a vibrant liberty interest in gay-rights litigation -- whether the case involves same-sex marriage, employment, or adoption -- would require the Court to extend whatever right it recognizes to many, many people (including the poor and people with disabilities, the very groups that make the Court edgy about extending suspect class status to gays and lesbians). I have trouble seeing why a Court worried about extending a right to "too many groups" would have no qualms about extending the right to everyone.

For this reason, the tactical danger associated with the liberty strategy is that the Court will limit its rulings to practices largely acceptable to the majority. The risk is that we will end up only with cases like Boddie v. Connecticut (where the Court held that the state must waive court fees for poor people seeking a divorce) or Tennessee v. Lane (where the Court affirmed Congress' power to guarantee people with disabilities access to court proceedings). Neither, it seems to me, gets us very close to full equality for the LGBT community.

To put this more concretely, the Court must always figure out how to cabin the rights it recognizes. It can do so by recognizing one group at a time, as it has in its equality jurisprudence. Or it can do so by recognizing one right at a time, as it has in its liberty jurisprudence. Kenji and Larry Tribe have rightly pointed out that there are many attractions to the "one right at a time" strategy. It casts the issue of gay rights in the language of universalism -- the right of all people to have sex, to forge relationships, to work, to serve in the military. But equal protection arguments do that as well if pitched properly.

Moreover, the "one group at a time" strategy has an advantage when we move from abstract rhetoric to concrete consequences. If the Court starts to worry about just how much of the world it is going to turn upside down, "one group at a time" seems like the safest route for anything but the most anodyne of rights. Even if a ruling recognizing gays and lesbians as a protected class means extending several new rights to that group, it nonetheless seems narrower than recognizing a liberty interest that grants everyone a right to work or to marry or to serve in the military.

It might well be that none of this would matter if the Court were writing on a blank slate. Both equality and liberty are in some senses "empty" concepts that require reference to the other to fill them in. But we have made a good deal more progress filling in what equality means in this society. My instinct on this issue may simply stem from the fact that there are many more equality cases on the books than there are liberty decisions. Larry Tribe may well be right that these cases all pose the same question. But one set of answers to that question has a long and distinguished history behind it. I would rather see gay-rights cases stand with Brown v. Board of Education than with with Roe v. Wade.

One might well be dissatisfied with an equal protection framework precisely because it narrows the range of possibilities -- because it may be good for the LGBT community but not good for humanity. But I am reminded of Louis Menand's description of Holmes: "[H]e had not given up the hope of . . . a glimpse of the infinite. He narrowed himself in order better to expand." Equal protection is the narrowing strategy that promises some glimpse of the infinite.

Full post as published by Balkinization on May 21, 2008 (boomark / email).