For the Balkinization symposium on James E. Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (University of Chicago Press, 2022).
Serena Mayeri
In Constructing Basic Liberties, Professor James Fleming offers a robust and persuasive defense of substantive due process doctrines that underpin(ned?) constitutional rights to sexual and reproductive freedom, marriage, family, and parenthood. My post focuses on Chapter 8, where Fleming responds to critics who contend that the equal protection clause provides a superior home for these rights, and on Chapter 10, where he offers prescriptions for future liberal and progressive action. I consider both chapters in light of Dobbs v. Jackson Women’s Health Organization, decided after the book’s completion.
Chapter 8 makes two main arguments,
one with which I agree, and one where our viewpoints diverge. First, Fleming
argues that Planned Parenthood v. Casey, Lawrence v. Texas, and Obergefell
v. Hodges wisely relied upon the due process clause, rather than equal
protection, to uphold the rights at issue. Second, Fleming emphasizes that the substantive
reasoning of each of these decisions (as opposed to their doctrinal
grounding) invoked equality as inextricably intertwined with liberty and
privacy and in so doing, offered satisfying accounts of why ensuring basic
personal freedoms is integral to equal citizenship for all Americans. Liberty
vs. equality, Fleming insists, is and always has been a false choice.
This second point—that liberty and equality are inseparable, indispensable, and mutually reinforcing—seems unassailable, before and after Dobbs. Critics of Kennedy’s jurisprudence from left and center, I think, would not dispute their symbiotic relationship. (For example, I take Catharine MacKinnon’s critique to be grounded in reservations about relying on privacy, not liberty or due process per se. And while Ruth Bader Ginsburg famously wished to ground abortion rights in equal protection/sex equality, she often underscored the importance of liberty and autonomy to women’s ability to attain equality with men).
Indeed, the Dobbs dissent
vindicates Fleming’s contention that equality and liberty are inextricably
linked values and rationales. In poignant parallel to Casey, the three-Justice
dissent demonstrates the enduring rhetorical power of intertwining equality and
liberty: more than two dozen times, the opinion invokes these principles
together. The dissenters stress the centrality of reproductive autonomy not
only to women’s equal citizenship, but also to economic and (more subtly)
racial equality. In so doing, the dissent “captures the heart of the matter”
and “what is at stake in protecting the [abortion] right” (to use Fleming’s
terms) in more incisive, explicit, and galvanizing terms than any previous
Supreme Court opinion.
Less persuasive to me is the
implied imperative to select just one constitutional ground as a right’s sole
basis. Fleming articulates several criteria for choosing between due process
and equal protection as the doctrinal rationale for striking down restrictions
on sexual and reproductive autonomy and on the right to marry. First, “[o]ne
ground may involve a smaller step in existing doctrine than the other.” Second,
“[o]ne ground may avoid or overcome doctrinal obstacles faced by the other
ground.” Third, “[o]ne ground may better capture the heart of the matter, what
is at stake in protecting the right.” And finally, “[o]ne ground may be more
likely to persuade people not already persuaded to protect the right” (p. 180).
But this discussion begs an
important question: why should the Justices have felt compelled to choose
between due process and equal protection as a doctrinal rationale any more than
they were constrained to pick liberty or equality as a matter of rhetoric or
reasoning? Loving v. Virginia (1967), which even Justice Thomas’s
apocalyptic Dobbs concurrence left off the list of endangered
precedents, is a case in point. In Loving, the Court didn’t merely
invoke equality alongside liberty; it also held the challenged laws
unconstitutional under both provisions, recognizing interracial marriage
prohibitions as instruments of racial subordination and white supremacy and as
violative of the due process right to marry.
Fleming’s criteria for choosing
between constitutional grounds reflect what Justice Kennedy regarded as
virtues—incrementalism, limited implications for future cases, conciliatory
language toward dissenting citizens—and many liberals and progressives perceive
as defects. These are small-c conservative decisions, writes Fleming, not
intended to be a blueprint for revolutionary change, and he rightly observes
that liberals and progressives couldn’t hope for much more from today’s Court,
which has veered sharply right in the years since Obergefell. But
hindsight shouldn’t obscure the fact that Kennedy (and colleagues) made a
choice in each of these cases not to rely on equal protection as well as due
process. (Presumably, Kennedy faced little pressure from other Justices to do so
in either Lawrence or Obergefell. O’Connor, who joined Bowers,
concurred in Lawrence on narrow equal protection grounds and only the
liberal Justices--Ginsburg, Breyer, Sotomayor, Kagan--joined the Obergefell
majority).
After Dobbs, on the other
hand, Justices inclined to protect the (federal) rights to personal and
intimate freedom that remain may in fact need to look beyond substantive due
process. Justice Alito’s dicta in Dobbs, which dismissively rejected
equal protection and revived the ghost of Geduldig v. Aiello (1974), may
bode ill for a federal abortion right grounded in sex equality. But equal
protection remains a compelling additional doctrinal basis for the protection
of rights such as same-sex intimacy and marriage equality (as well as
contraception, if it comes to that). And equality arguments are likely to play a
more central role even in abortion cases.
Post-Dobbs, Fleming’s
criteria for choosing a constitutional ground may point toward equal protection
in at least some federal cases. A Justice hesitant to jettison precedents such
as Lawrence and Obergefell could circumvent the “doctrinal
obstacle” posed by Dobbs by upholding rights under the equal protection
clause. Chief Justice Roberts joined the majority in Pavan v. Smith
(2017), suggesting that he may not be eager to revisit marriage equality. Roberts
also joined Justice Gorsuch’s majority opinion in Bostock v. Clayton County
(2020) which, notwithstanding its formalistic and textualist approach,
understands discrimination based on sexual orientation and gender identity as
discrimination based on sex.
Further, because liberals and
progressives will be playing defense in federal courts for the foreseeable
future, in Chapter 10 Fleming wisely urges us to turn also to legislatures at
all levels, to state courts and constitutions, and to sympathetic executive
officials. Arguments based in equal
protection and other equality provisions have much to recommend them in all of
these venues, as well as in federal courts, especially after Dobbs.
First, equal protection
jurisprudence takes a starkly different approach to the relevance of history
than does the Dobbs majority, which freezes due process rights in a time
when Black men and all women lacked the franchise and suffered discrimination
and segregation that would be constitutionally impermissible today. Dobbs
rejects a hallmark of Justice Kennedy’s jurisprudence: Kennedy not only
intertwined liberty and equality but also blurred the lines between due process
and equal protection with respect to history’s role in constitutional analysis.
Kennedy’s approach to “history and tradition” integrated equal protection’s
more rigorous scrutiny of laws that discriminate against historically
disadvantaged groups. Rather than requiring an unbroken “history and tradition”
of protecting a specific right, for Kennedy, the evolution of social mores and
values could justify the recognition of rights previously overlooked.
With Kennedy’s approach laid to
rest by Dobbs, it is now only in equal protection cases that a history of
failing to protect the rights of marginalized persons weighs in favor of,
rather than against, vindicating those rights today. If women, people of color,
or those with minoritized sexual or gender identities suffered injustices in
the past, equal protection analysis provides a reason to question the
constitutionality of laws limiting their freedom today, not to legitimate them.
Equality
arguments—which can rely upon the Fourteenth Amendment’s equal protection
clause, but also on the other Reconstruction Amendments, the Nineteenth
Amendment, and state constitutional equality mandates—also illuminate how
contemporary restrictions on rights to sexual, reproductive, and intimate
self-determination perpetuate the very historic injustices that these
provisions exist in order to remedy. As Peggy
Cooper Davis, Michele
Goodwin, and Dorothy
Roberts have argued, the Reconstruction Amendments’ primary purpose was to
eliminate the badges and incidents of slavery and ensure freedpeople’s equal
citizenship—and nothing was more central to the American system of enslavement
than dehumanizing, exploitative, and violent control of labor, including
reproductive labor; the deprivation of all sexual and intimate autonomy; and
the denial of self-determination, including the right to family integrity.
Proponents of the Nineteenth Amendment, too, championed “voluntary motherhood”
and understood the franchise as enabling women to achieve equal status in the
family, economy, and polity, as Reva Siegel has shown.
Over the half-century since Roe,
feminist legal advocacy under the equal protection clause spawned a rich
jurisprudence of sex equality law with implications not only for reproductive and
women’s rights but for the rights and freedoms of LGBTQ+ Americans. Thanks to
champions such as Pauli Murray, Ruth Bader Ginsburg and their legatees, strong
anti-stereotyping and anti-subordination principles animate caselaw from the
1970s on questions including jury service, sex equality within marriage, and
social insurance provision. More recent decisions in United States v.
Virginia (1996) and Nevada Department of Human Resources v. Hibbs
(2003) amplify and strengthen these principles, as Reva Siegel, Melissa Murray,
and I argued in our amicus brief in
Dobbs.
In these cases, the Court rejected
laws and practices that ratify sex-based stereotypes about the proper roles of
men and women as spouses and parents, workers and caregivers, citizens and
students. At a minimum, these precedents are doctrinally useful in defending
the right to choose a sexual or marriage partner irrespective of sex. Equal
protection can also support the right to contraception, on similar grounds to
its application against abortion restrictions, but without the countervailing
pressure of a state interest in protecting fetal life—an interest the Dobbs
majority assures us (perhaps less than persuasively) is not present in any
context other than abortion.
A focus on equality can also shine
a spotlight on how deprivations of intimate and reproductive freedoms continue to
have the most devastating impact on people subject to intersecting forms of
subordination based on race, poverty, disability, sexual orientation and gender
identity as well as sex. For instance, Black and Indigenous Americans already
suffer staggeringly high rates of maternal and infant mortality and of poverty;
forced pregnancy and childbirth therefore has an egregiously disproportionate
racial and economic impact, as reproductive justice advocates and scholars emphasized
in Dobbs.
It is certainly possible to
highlight these inequities without direct reference to the equal protection
clause or to other equality provisions, as the Dobbs dissent illustrates.
But constitutional equality claims give such injustices doctrinal as well as
political and symbolic significance. As Siegel, Murray, and I have argued,
equality claims allow us to ask different questions: for example, whether
states that purport to ban abortion to protect women’s health and fetal life
have first explored nondiscriminatory and non-coercive alternatives to criminalizing
abortion, such as expanding Medicaid, providing access to contraception and
comprehensive sex education, accepting free federal funds for childcare and
cash assistance to needy families, and protecting pregnant workers. (Spoiler
alert: they have not).
Constitutional equality provisions also
enable us to scrutinize justifications for limiting access to contraception,
abortion, and other forms of reproductive health care—or bans on same-sex
intimacy, or marriage—for evidence that they are animated by race- and/or
sex-based stereotypes or assumptions. Such stereotypes include, for example, the
idea that women are destined for motherhood, or that gay, lesbian, nonbinary,
queer and trans people are less worthy of access to health care or legal
relationship recognition, or that poor people of color don’t deserve to make
decisions about their bodies and families free from government interference.
Liberals
and progressives who follow Fleming’s advice to look beyond federal courts will
find ample precedent for invoking equality provisions alongside other
constitutional and statutory protections to vindicate personal rights. In the
abortion context, equality arguments—often alongside claims about privacy,
liberty, and bodily integrity—have succeeded in a number of state courts and
legislatures, before and since
Dobbs. Sex equality provisions have supported many advances for LGBTQ+
individuals in administrative agencies and in state and federal courts,
including a powerful anti-sex stereotyping principle that extends to
discrimination based on pregnancy, family caregiving responsibilities, sexual
orientation, and gender identity.
Finally, centering
equality doctrines also highlights the links between attacks on personal rights
and freedoms and the imperiled future of multi-racial democracy. In a searing
2018 opinion, federal district court Judge Carlton Reeves linked
Mississippi’s 15-week abortion ban to its history of race- and gender-based
oppression and exclusion. The law called to mind “the old Mississippi—the
Mississippi bent on controlling women and minorities,” which “barred women from
serving on juries,” forcibly sterilized Black women, and did not officially
ratify the Nineteenth Amendment until the 1980s. Last week, in oral arguments
in Merrill v. Milligan, a case testing the continued vitality of section
2 of the Voting Rights Act of 1965, Justice Ketanji Brown Jackson exposed the
historical fallacy of colorblind interpretations of the equal protection clause
by citing legislative history that demonstrates how the Reconstruction
Amendments’ framers understood race consciousness as imperative to ensure
freedpeople’s equal citizenship. Imagine, as Melissa Murray invited us
to do, that Justice Jackson had been on the bench in Dobbs to conduct a
similar historical analysis of the Reconstruction Amendments’ origins and
purpose. The link between personal freedoms and access to the rights of
citizenship, in other words, exists not only as a matter of social and
political reality but as a matter of constitutional doctrine.
As Fleming rightly recognizes,
though, the future of liberty and equality lies outside the Supreme Court. Fleming’s
call, in his book’s final chapter, to leverage political power in the mode of
Stacey Abrams and other Black women who have worked for decades to protect and
extend voting rights, gets to the heart of the matter. The rights formerly and
currently protected by substantive due process are supported by a majority of
Americans, but voter suppression laws, partisan and racial gerrymandering,
false claims of voter fraud, the evisceration of campaign finance regulations, and
an emboldened white supremacist insurgency endanger not only these rights but
the survival of our constitutional republic. How well we defend democracy and
the rule of law in the coming months and years ultimately will determine the
future construction of basic liberties.
Serena Mayeri is Professor of Law and History at the University of Pennsylvania Carey Law School. You can reach her by e-mail at smayeri@law.upenn.edu.