Legal Commentary

Update: this post originally posted before I finished drafting it.  What follows is the full version of the post.  Blame it on my technical skills.

A while back, Kenji Yoshino and Heather Gerken debated whether gay rights should be based on equality or liberty.  I'm a great admirer of Kenji's work, but I'm with Heather: equality it is.  As Tribe argued, we should rather see gay rights stand in the Brown (and Loving) line of cases than the Roe line.  Let me suggest why: Roe is a poorly-reasoned, poorly-written case that remains highly controversial. 

Indeed, the whole idea of "substantive due process rights" is suspicious to many, as is the enterprise of mining the Constitution for new rights.  "Equality" at least has the virtue of being somewhere in the document, in one form or another.

Yoshino is surely right when he argues that judges are wary of extending protections to "too many groups."  But aren't they also wary of recognizing "too many new rights"?  Moreover, the "too many groups" problem can be somewhat mitigated: at the very least, discrimination against gays can be thought of as a form of gender discrimination, an already-protected category.  This is true both formally (Jim can marry Pat, but only if Pat is a woman and not a man) and in terms of social norms and context.  Recognizing discrimination against gays as a form of gender discrimination might not accomplish all that gay rights advocates wish to accomplish, but it avoids the "too many groups" and "too many rights" problem.

All the same, this debate strikes me as a quixotic--one might say academic--endeavor.  Won't (and shouldn't) lawyers make both arguments, where appropriate?  And won't different judges choose among them as they see fit, or just continue to issue opinions that represent a hodgepodge?  I think this fits in with that other question we've been tackling here--what is the relationship between these academic debates and what goes on in courts and lawyers' offices?