Jon W. Davidson
For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries
2013 marks the 40th anniversary of the decision in Roe v. Wade and the 10th of the ruling in Lawrence v. Texas. These shared anniversaries—which arrive just as the Supreme Court considers same-sex couples’ right to marry—provide an opportunity to reflect on the significance of the ways in which legal arguments are framed.
While the decision in Roe v. Wade was grounded in privacy doctrine, plaintiff’s counsel and amici also had raised sex discrimination arguments. Even though the Court chose not to reach these equality claims in Roe, Justice Blackmun subsequently recognized in his separate opinion in Planned Parenthood v. Casey that “restrictions on a woman’s right to terminate her pregnancy also implicate constitutional guarantees of gender equality.” Similarly, in her dissent in Gonzales v. Carhart, Justice Ginsberg wrote that “Legal challenges to undue restrictions on abortion procedures … center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” Some have wondered whether Roe might have fared an easier future had the decision been grounded in such equality arguments instead.
The majority opinion in Lawrence v. Texas relied in part on both Roe and Casey (although principally employing liberty rather than privacy language). As in Roe, party counsel and amici also had raised equal protection arguments in Lawrence. Unlike Roe, however, the decision in Lawrence noted the connections between liberty claims and those based on equal protection. The majority pointed out that, “Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects.” It explained that a focus on liberty would “advance both interests,” recognizing that laws that criminalize homosexual conduct constitute “an invitation to subject homosexual persons to discrimination.”
The Hollingsworth v. Perry challenge to Proposition 8 likewise presents both liberty and equality arguments, and, if the justices reach the merits, they again are going to have to decide which doctrinal roads to follow. They could issue a bold ruling that same-sex couples also have an autonomy right to determine the course of their lives and therefore share the freedom to marry that prior decisions have held to be a fundamental liberty right. Or, instead of striking down the marriage restrictions still existing in 41 states, the justices could tread more narrowly, looking at how California’s voters amended the state’s constitution to take away the equal stature provided by marriage, relegating same-sex couples instead to the lesser status of domestic partnership and thereby again inviting sexual orientation discrimination.
As the coming anniversaries raise questions about what might have happened had different doctrinal paths been followed in Roe or Lawrence, the anniversaries of these key victories for women’s and gay people’s rights may also cause the justices to think about the dual ways of framing the discrimination involved in excluding same-sex couples from marriage. I can’t marry my partner in California both because I’m gay and because of my male sex (since, were I female, we could marry). Those who defend that restriction often do so based on sex-stereotyped notions about the “complimentarity” of the sexes and sexist objections that a man should not assume the role of a woman and that a woman needs a man. Recognizing how sexual orientation discrimination inherently is and rests on sex discrimination may also lead to the application of heightened judicial scrutiny of the restriction on who may marry.
Unjust laws like those wrongly limiting reproductive freedom, sexual intimacy, and the freedom to marry, often provide a wealth of choices about how to frame arguments about why they violate the Constitution. And, as with home construction, framing matters a lot in the law. It makes a difference in the size and strength of what gets built, as well as how it will be viewed in years to come. I’m hoping that whatever framing the justices choose in Perry gives us yet another anniversary to celebrate decades hence.
Jon W. Davidson is Legal Director at Lambda Legal. You can reach him by e-mail at jdavidson at lambdalegal.org