Jon W. Davidson
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