In a new paper posted at SSRN and post to Balikinization, Professor Heather Gerken argues that equality and, therefore, the equal protection argument, not liberty is the proper and mpst promising paradigm for future gay rights litigation. Here is the abstract to the paper:
This essay - penned as a tribute to Larry Tribe - argues that equality, not liberty, represents the most promising framework for future gay-rights litigation. The paper begins by arguing that the stylistic differences between the two opinions in Lawrence v. Texas signal something important about the shortcomings of the liberty paradigm. As Larry Tribe has written, a liberty claim is won or lost based on what level of generality a court uses to describe it. We thus see Justice Kennedy, with his penchant for abstract prose, describing the case at a high level of generality in vindicating Lawrence's challenge to Texas' sodomy law. But note that the opinion's fluid prose ends precisely when the opinion moves from the general to the specific. Kennedy's high-flown abstractions are ill-suited to addressing facts on the ground. If Justice Kennedy is too abstract in his prose, Justice Scalia is too concrete. Scalia's groundedness makes him the wittiest dissent in cases involving sex, for everything funny about sex lies in our discomfort with the gap between the particular and the abstract. But Scalia's insistence that the case is about nothing more than the right to engage in a particular type of sex act ensures that his opinion, too, misses something important about what is at stake in Lawrence.
Having outlined the shortcomings of the two opinions, the remainder of the essay argues that equal protection, not liberty, is the right paradigm for future gay-rights litigation. Equal protection is pitched at the right level of generality; it captures what we are fighting about. Larry Tribe may find it easy to toggle between liberty and equality when writing about substantive due process. Like Justice Brandeis, he is "the master . . . of both microscope and telescope." In the parts of his work where he connects the Court's liberty decisions, he shows us constellations where the rest of us saw only a random collection of stars. In other parts of his work, he offers a granular view, describing the relationship between liberty and equality as a double helix. For everyday judges and lawyers, however, doctrinal analysis starts with doctrinal categories. It thus seems inevitable that Tribe's double helix will be split. And if courts must choose between these admittedly intertwined paths, we will get closer to the vistas Tribe describes if judges follow the path of equal protection, not liberty. That is because what is a stake in these debates is not whether all humans should enjoy a right, but whether gays and lesbians, in particular, should do so, and that is an idea better capture by the equal protection paradigm. Somewhere between Justice Kennedy's high-flown right to intimate relations and Justice Scalia's down-and-dirty discussion of sodomy is the status of the LGBT community. Equal protection begins with that issue while allowing the Court to write with a worthy tradition behind it.