Balkinization: Gerken-Yoshino on the Liberty/Equality Debate: Round 2

Gerken-Yoshino on the Liberty/Equality Debate: Round 2

Heather K. Gerken

Yesterday Kenji Yoshino and I debated whether, as a purely predictive matter, liberty or equality offers the more promising framework for litigating gay-rights claims (our posts are here and here, with short essays on the topic here and here). Today I want to address whether there is a normative reason to prefer one strategy over the other in thinking about these questions, another point of disagreement between us. I must confess that here I am more ambivalent about which paradigm is more attractive, in large part because (as both Kenji and I, following Tribe, agree) the two paradigms are necessarily intertwined. Nonetheless, given the current legal landscape, I mildly favor equality over liberty because it comes closer to capturing what we are actually fighting about.

Take the debate between Justice Kennedy and Justice Scalia in the Supreme Court's most recent gay-rights decision, Lawrence v. Texas. As Larry Tribe has written, a liberty claim is won or lost based on what level of generality a court uses to describe it. In striking down Texas's sodomy statute on liberty grounds, Justice Kennedy describes the right in highly abstract terms. The opinion opens by proclaiming that "liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person in both in its spatial and in its more transcendent dimensions." It's lovely. But what on earth does it mean? The whole game here is to identify the "certain intimate conduct" that is protected, and the opinion never gives us the tools for doing so. One cannot help but long for the elegant specificity of Brown: "separate . . . [is] inherently unequal."

Just as Justice Kennedy describes the case in language that is too abstract, Justice Scalia describes it in terms that are too concrete. It is Justice Scalia's groundedness that makes him the wittiest dissent in cases involving sex, for everything funny about sex lies in our discomfort between the particular and the abstract. Justice Scalia famously deflated grand invocations of the First Amendment by describing 60,000 naked Midwesterners exposing themselves in the Hoosier Dome. The power of Justice Scalia's dissent in Lawrence stems from his confident, pragmatic rhetoric. He never lets us imagine two men in a relationship. He never lets us imagine two men, to use a common abstraction, "making love." He insists that we remember at every point that sodomy is the act at issue.

The marked differences between the style of the majority and dissenting opinions, it seems to me, are signs of the substantive shortcomings of the liberty paradigm. By framing the case in liberty terms, neither opinion comes to grips with the fight being waged in Lawrence. What is at stake in Lawrence is not whether all human beings should enjoy a right to some vaguely defined notion of intimate relations (Kennedy's take) or whether we all enjoy the right to engage in a concrete sex act like sodomy (Scalia's). What is really at stake in Lawrence is whether gays and lesbians, in particular, should possess both of these rights, and that idea is better capture by the equal protection paradigm. Somewhere between Justice Kennedy's high-flown rhetoric and Justice Scalia's down-and-dirty prose is the status of the LGBT community. Equal protection begins with that issue.

That is why I sometimes wonder whether a litigation strategy premised entirely on liberty claims could prove wholly satisfying. Even as the liberty paradigm pushes toward universalism, it seems to require members of the LGBT community to litigate pieces of their humanity, one by one. First they assert their right as human beings to have intimate relations with another person. Then they assert the right to marry or to have a family. To work. To serve their country. These are all fine things. But it seems to me that they do not capture the essence of what is at stake in these debates, which is to recognize not the parts of personhood that we all share – though that is plainly necessary for equality – but to acknowledge the entire person before us whether we share anything or not.

Indeed, my assumption is that the many gay and lesbian lawyers who wept openly in the courtroom when Lawrence was handed down did so not because sodomy is now legal in every state, nor did they do so because we are all now entitled to love one another. They did so because – as Justice Kennedy observed, using the evocative language of equal protection -- the Supreme Court’s decision in Bowers v. Hardwick represented a "stigma" on gays and lesbians. Equal protection is where the rhetoric and reality of gay-rights litigation coincide.

My instincts on these matters may simply stem from the fact that there are many more equality cases on the books than there are liberty decisions. Kenji rightly points out in his response to this post that it is difficult to identify a clean set of principles that tell us exactly which groups deserve protected constitutional status and which don't. I must confess that I lack Kenji's faith that this exercise is somehow more principled when we define which liberties people deserve. But even if he is correct that philosophers have done a better job on this front, American judges are not terribly practiced at it, at least not in the absence of a text or a statute to guide them. The lawyer in me finds it easier to see the contours of the argument, to find the fit, in the Court's equal protection jurisprudence.

Perhaps this is an unbearably conservative view. After all, my instinct is like that of Virginia Woolf's about women authors. In A Room of Her Own, Woolf noted how difficult it is for someone to write without a tradition behind her. My argument is that when the jurisprudence of gay rights gets written, it will be easier to write it with a tradition behind us But I may be quite wrong about that, for reasons that Woolf herself identifies. Woolf, after all, also argued that it was a mistake for women to use what she termed "a man’s sentence," noting that even Charlotte Bronte "with all her splendid gift for prose, stumbled and fell with that clumsy weapon in her hands" and that "George Eliot committed atrocities that beggar description." Woolf told us that the genius of Jane Austen was that she "looked at [that man's sentence] and laughed at it and devised a perfectly natural, shapely sentence proper for her own use." She argued that women turned to the novel precisely because the tradition had shut them out of other forms. "The novel alone was young enough to be soft in her hands," Woolf writes. Perhaps the same is true of the new liberty jurisprudence that we see in its inchoate form in Lawrence. It is a new tradition, young enough to be soft in our hands.

* * * *
Kenji Yoshino responds: "It's always a dangerous thing to disagree with Heather, as I have learned over half a lifetime. So here I am glad to see that our disagreement is narrower than I thought. I do normatively endorse the Lawrence tactic of "leading with liberty." But I emphasize that I do so with two significant caveats. First, equality claims can and indeed must be made outside the courts by entities more institutionally competent to make them. Second, equality claims should still find their way into Supreme Court opinions, but under the guise of defining the metes and bounds of the liberty claim at issue." For the full response, click here.

Posted 9:27 AM by Heather K. Gerken [link]

Comments:

reading kenji's post elsewhere i have two questions.

1.concerning "And a group must have an enormous amount of political power before it can be recognized as politically powerless by the court." .. is that a typo ?? i fail to understand how one follows the other .. and

2. what is meant by "dialogic constitutionalism " ??

thanks in advance ...

# posted by

Jkat : 3:34 PM

Heather and Kenji, how would you relate the Liberty/Equality debate to the issue of being allowed to attempt to conceive together to have biologically-related children? Do you feel that there should be an equal right to conceive with a person of either gender, or do you feel that because same-sex conception requires using genetically modified genes, that it crosses over into a liberty argument for people to have the liberty to use genetically modified genes?

# posted by

John Howard : 7:20 PM

I am not a scholar of Supreme Court cases, but I am familiar with Lawrence. I read your essays and thought to comment from the perspective of international rights theory, something I have been reading. It makes for an interesting normative counterpoint.

Gerkin posits the two-part opening question of an equality analysis: equal with regard to what? equal with regard to whom? Yoshino points out how the Court has historically moved away from equal protection cases [towards the liberty part of the 14th A.] because of the increased pluralism in American society, making group comparisons treacherous.

The normative answer to the first equality question is: rights (human, civil, natural – take your pick); i.e., liberty or autonomy. Interestingly, because the answer to this arm of the question begs the question of the answer to the second arm, it only appears liberty questions do not have to address the issue of group. Gerkin says liberty rights are “universal,” but that is not formally correct. Yoshino also fails to note the issue with regard to “for whom?” The correct answer is, with some sometimes minor exceptions that are the subject of many posts on this blog, citizens of the United States. If this is taken into account, some of the apparent differences between the liberty and equality analyses are elided.

The “whom” is the group over which SCOTUS has jurisdiction. That is always the starting point, and what Yoshino points out is that SCOTUS has moved (or is moving) the boundaries of the group to the citizenship level of generality, collapsing the second arm of the equality analysis into the first. That is proper in a constitutional order with one kind of citizenship, and consistent with US theory of rights. [9th and 10th Amendments, etc.]. Therefore, from the practical perspective of litigation, whether to lead with liberty or equality would seem to be a rhetorical question only, as the discussion will soon enough be on the right. All citizens in theory have the same rights because there is only one class of citizenship (immigration aside).

Equality with regard to rights is the normative social condition, and the logic of Lawrence could be used in all such cases. In essence, plaintiff is a human being and a citizen, equal to, and entitled to, or the bearer of, the same rights as all other citizen human beings.

How can rights that have not been specifically identified in liberty or equality litigation be identified?

Dignity is a good start as it is well-enough represented in Supreme Court jurisprudence. Originally it was a status designation for dignitaries, and maybe then it could have better been described as dignitary rights/status, although now convention seems to have settled on “dignity” as the source of rights (and sometimes as a right). International human rights theory generally says every human being has (or is entitled to) dignity, and therefore has some set of rights. This is an essentialist position grounded in natural law, and it gives little guidance as to what the unenumerated rights might be.

There are three accessible sources of information and theory about proto-rights and rights. John Finnis, the natural law theorist, defines certain goods (proto-rights) as ends consistent with human flourishing for all humans. Similarly, although somewhat agnostic with regard to the issue of natural law, Nussbaum (with reference to Sen) describes a set of capabilities that are prerequisite for human flourishing. These are neo-Aristotelian theories of natural law and justice, respectively, that can provide theoretical support for a wide range of particular rights in any political system. They are quite specific, incommensurate, and provide the architectural structure of a theory and description of dignity.

More specifically, and perhaps more relevantly, given the reference by the Lawrence court to international human rights standards, the Universal Declaration of Human Rights and the subsequent human rights treaties specifically identify a wide range of rights, that, although not directly available as causes of action for US citizens, are available as content of the right to liberty (self-determination, autonomy). It appears the substantive due process right of liberty is the equivalent of the idea of dignity in the sense it is refers to the general idea the citizen human being is a rights holder.

The interesting element of international rights discourse that strikes me as being of potential relevance, is the idea of collective (group) rights/duties. “Man is a political animal.” All the rights theories recognize collective rights as necessary for human flourishing, although the idea is under-theorized. Does the LGBT community have a claim to any collective rights or duties that other citizens or collectives do not? Clearly indigenous Americans do. It seems somewhat easier to make the case for collective rights when the issue is political, such as when the citizens as a collective asks something of the government, or the group has a claim to a different kind of citizenship. So, although dignity requires the right to belong to groups to flourish, and the right to be an active member of a political organization (the state, the federation), it does not easily extend to the idea civil collectives should have rights separate or different from citizenship rights (perhaps with such exceptions as the right to revolt), or, correlatively, that membership in a civil group should entail the loss of citizenship rights.

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