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Liberty or Equality?

  • Author(s): Bhagwat, Ashutosh Avinash
  • et al.

Published Web Location

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2673194
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Abstract

This paper was presented as the Seventh Annual Anthony Kennedy lecture at the Lewis & Clark School of Law on September 23, 2015.  My topic was Justice Kennedy's majority opinion in the recent Obergefell case, recognizing a constitutional right to same-sex marriage.  In the first part of my lecture, I placed the Obergefell opinion in context, taking into account Justice Kennedy's place on the current Court, and his past jurisprudence.  In particular, I noted that while Justice Kennedy is undoubtedly the co-called "swing Justice" on the Roberts Court, he is quite different from past swing Justices such as Sandra Day O'Connor and Lewis Powell.  The latter were considered to be moderate pragmatists, lacking strong judicial philosophies.  Not so for Justice Kennedy.  From his first years on the Court, his jurisprudence has been notable for a passionate commitment to Liberty in all of its aspect, and his firm belief that protection for Liberty is intrinsically tied to protection of individual Dignity.  This commitment appears in his  privacy jurisprudence of course (culminating in Obergefell), but also in other areas including notably free.  Moreover, unlike his colleagues, Justice Kennedy's commitment to liberty transcends political boundaries, encompassing such "liberal" Liberty claims as abortion and the free speech rights of pornographers, and such "conservative" claims as property rights and commercial speech.

 

I then raised some doubts about the reasoning in Obergefell.  I noted that the plaintiffs in the case had raised both Due Process (i.e., Liberty), and Equal Protection (i.e., Equality) claims, and the Court's formulation of the questions presented preserved both.  Yet Kennedy's opinion is almost all Liberty, with a tiny dollop of Equality.  I suggested that this emphasis is probably a product of Kennedy's own preferences and comfort levels.  While Justice Kennedy has always been a strong advocate of Liberty claims, his relationship to Equality is more ambivalent.  He unquestionably is firmly committed to nondiscrimination principles, and even (unlike his conservative colleagues) committed to racial integration.  However, he has demonstrated -- notably in the Parents Involved decision -- grave discomfort with policies that classify individuals based on qualities such as race.  Indeed, this discomfort ties into his commitment to Dignity, because he sees such typecasting as itself in consistent with individual Dignity.  As a consequence, Liberty must have seemed the easier path to take.

 

Ultimately, however, I do believe this choice was a mistake, for several reasons.  First, I think that jurisprudentially, Equality is the stronger argument.  The Court's entire substantive due process jurisprudence, which was the basis of the Due Process holding in Obergefell, rests on somewhat shaky foundations, given its lack of textual grounding.  Equal Protection, on the other hand, is a well-established, textually based doctrine; and the argument for extending heightened scrutiny to discrimination against LGBT individuals strikes me as extremely powerful, under existing precedent.  Second, an Equality based holding would have been broader, granting more protections to sexual minorities than a narrow decision focused on marriage.  Third, it is possible that an Equality based holding would have generated less intense opposition than a holding that redefines marriage (though this is admittedly speculative).  Finally, I also believe that Justice Jackson was correct in his argument, in the Railway Express case, that in a democracy, equality-based constitutional decisions are generally preferable to liberty-based ones, because they interfere less with legislative authority.

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