Sexual liberty and equality

by on May 5, 2013  •  In Constitutional law, Culture, Reproductive rights
Hunter Of Justice

Following is the essay I presented at the January ACS Conference at UCLA on the 40th anniversary of Roe v. Wade and the 10th anniversary of Lawrence v. Texas. The piece is now posted at UCLA Law Review Discourse, where you can also download it in pdf -

We, the people, declare today that the most evident of truths—that all of us are created equal—is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

—Barack H. Obama, Second Inaugural Address, January 21, 2013

Today, forty years after Roe v. Wade2 and ten years after Lawrence v. Texas,3 we can connect the dots, as President Obama suggested, linking these watershed U.S. Supreme Court decisions and the social movements that fueled them to the full panoply of claims for equality under law. Roe and Lawrence fit comfortably in the heritage of American civil rights cul­ture because they fulfill the noblest as­pirations of that ethos: to force the state to extend the full moral agency of citizenship to a disadvantaged social group. That reading stakes their claim to great­ness. But the decisions also differ in an important way. They illustrate two distinct functions of civil rights movements: to end categorical de jure inequal­ities, and to dismantle de facto hierarchies.

Lawrence exemplifies the goal of ending categorical inequality, often man­ifested in the form of blanket exclusion. The antiexclusion aspect of the civil rights paradigm arose directly and organically from the movement to challenge Jim Crow segregation laws in the South, the most famous products of which were Brown v. Board of Education4 and the federal civil rights statutes enacted in the 1960s.

Roe v. Wade, by comparison, illustrates a different and more complex version of the civil rights paradigm. The very nature of the statute that was struck down—the criminalization of certain decisions regarding pregnancy—functioned as a proxy for the subordination of women. The Court in Roe addressed an ex­clusion that was more de facto than de jure, but the gendering intrinsic to an­tiabor­tion laws was essential to their foundational harm, which was a soft form of state coercion of motherhood.5

The double anniversary of Roe and Lawrence provides an apt moment to ask what the history of the two decisions can tell us about the relationship between the civil rights paradigm and sexuality, how the legacies of Roe and Lawrence illustrate the differing functions of civil rights claims, and how future legal de­velopments related to law and sexuality may (or may not) produce greater justice for sexual minorities.

Additionally, the coincidence of the two anniversaries invites comparison of the social movements behind each decision. Specifically, today is a prime mo­ment to ask—in light of what we know about the possibilities, limits, and perils of the civil rights paradigm—why the political contingency of Roe has persisted for forty years, even as the controversy over the criminalization at issue in Lawrence ten years ago has disappeared from public debate. Assertions of re­productive rights now seemingly languish in a political and legal coma, while popular sup­port for lesbian, gay, bisexual, and transgender (LGBT) rights ap­pears to grow at almost miraculous speed.6

I. The Civil Rights Paradigm
Whatever the shortcomings of a formal equality model,7 there is an im­portant cultural reality to the sense of hope and longing that often arises from invocation of aspirational equality, of which President Obama’s speech is merely one of many examples. Its significance animates Wendy Brown’s paraphrasing of Gayatri Spivak: Civil rights protection is “that which we cannot not want.”8 In the United States, advocates for racial justice created a cultural frame for the idea of civil rights as well as a doctrinal foundation. In addition to legal arguments, the civil rights movement produced a scripture-like narrative of triumph and re­demption that has inspired every American campaign for social justice since the mid­dle of the twentieth century.9

This narrative now attaches to LGBT rights. Even as older movements con­tinue the effort to eliminate obstacles based on such factors as race or sex, LGBT equality is frequently described in such terms as the civil rights question of our time.10 Indeed, it was this premise that gave such power to how the president phrased his support for LGBT equality in his second inaugural address, even though he was repeating a position that he had stated earlier.11 The president’s speech places LGBT rights squarely in the civil rights heritage, in implicit equi­valence to its forebears, and reinforces the idea that LGBT issues are, for better and for worse, a new generation’s most emblematic civil rights claim.

What civil rights movements and arguments framed under the rubric of equality do best, and a project for which the law is perfectly suited, is ending de jure exclusions and categorical inequalities. The Supreme Court did precisely that in Lawrence and it may do that again in a marriage case in the near or distant future. In the past, when a challenged statute has contained an exclusion or other absolutist result, the Court has sometimes found a law unconstitutional under even a weak constitutional standard.12

What civil rights movements and equality arguments do not do so well is dis­mantling hierarchies. Social hierarchies often incorporate exclusions, but they are more complex and more enduring. Reva Siegel conceptualized the resilience of stratification systems as “preservation through transformation,” a process by which a legal reform that ends the categorical inequality that is fundamental to a status regime—such as racial segregation—will nonetheless permit the modern­ization of rationales for inequality, and thus preserve the inequality itself.13 Blaming disadvantage on cultural factors, such as single-parent households, is an example of such a modernization. The result is that much of the structure of racial hierarchy can remain in place, even though the arguments for why such hierarchy is natural have shifted and narrowed from biological inferiority to the inferiority of social arrangements.

If we measure the state of sexual freedom by the ending exclusions prong of the civil rights paradigm, it is in terrific shape. In fact, possibly the greatest gift from the quasi-mythologized history of civil rights in the 1960s is the sense of the inevitability of victory over irrational bias. The idea of an American march of progress toward equality for all now incorporates LGBT issues, to the point that the single question in the gay marriage debate about which the largest number of people agree is probably the eventual outcome: Nationwide legalization is in­evitable.14 The most solid evidence for the claim of inevitability may be demo­graphic data showing high levels of support among younger age groups,15 but the frame of inevitability for the achievement of formal equality was crucially shaped by the American experience of a succession of earlier civil rights movements, especially those seeking to end discrimination based on race, sex, and disability.

If, however, we measure the state of sexual freedom in anti-hierarchy terms, the conclusion is far less optimistic. The fragility of abortion rights is illustrative. The Court’s decision in Roe, even as reconfigured somewhat more along women’s equality principles in Planned Parenthood of Southeastern Pennsylvania v. Casey,16 triggered less an end to exclusion than a protracted forward-backward dance over how much autonomy women have to make decisions as to the procreative dimensions of their lives. The result is a weakened form of subordination. As a formal matter, women can choose to have abortions and the state cannot abso­lutely prohibit abortion in all circumstances. Access to care, however, re­mains highly contested, so that low-income and African-American women, who are most likely to have an abortion,17 remain at the bottom of this dimension in the hierarchy of sexuality.

The dynamics of claiming a subordinated identity creates a process that is more complex than a linear march to justice. A group’s mobilization for civil rights claims leads directly to legal challenges to formal classifications by the state that discriminate against the group. As these efforts become more successful, a parallel social process occurs in which the excluded group or identity is in­creas­ingly normalized, becoming more widely viewed as acceptable. Perversely, the elimination of a dramatic exclusion can make the residual hierarchy appear more, rather than less, legitimate because the problem of the former irrational exclusion has been fixed. Thus, for example, the invalidation of sodomy laws may enhance the apparent reasonableness of laws criminalizing other consensual sex­ual conduct—such as nonrisky sex by persons with HIV.

A failure to differentiate these two different projects—ending exclusions and dismantling hierarchy—can only muddy critical analysis of civil rights cam­paigns and equality principles. By understanding the limits of each discourse, schol­­ars and advocates could avoid both naïve expectations and underappreciated achievements.

II. Comparing Roe and Lawrence
The two cases whose anniversaries we consider illustrate these points. Lawrence stands as an example of ending a specific exclusion. In that case, the Supreme Court ruled that states could not criminalize the sexual conduct that largely defines homosexuality, thus reversing Bowers v. Hardwick.18 The sodomy laws struck down in Lawrence had been the basis for courts to rule that, if it was permissible for a state to criminalize this form of sexual conduct, governments could surely engage in less draconian forms of adverse treatment, including job discrimination and denial of custody rights.19 On that reasoning, gay people stood as almost by definition unequal before the law, lacking in many ways the essential criterion of citizenship, “the right to have rights.”20

The ruling in Lawrence is based on protection of liberty under the Due Process Clause and not on guarantees under the Equal Protection Clause, but its most powerful social message has been legitimation of equality for gay people. Despite the Court’s eschewing of an equal protection rationale,21 LGBT rights organizations successfully framed Lawrence as a declaration of equality.22 The fact that it formed a political, although not doctrinal, bridge to the first ruling by a state’s highest court that same-sex couples must be granted the right to marry cemented that popular understanding.23 Lawrence remains the high watermark of the LGBT equal rights movement to date.

Much like Lawrence, Roe v. Wade is also a liberty/equality compound. Roe’s holding that the liberty-based right to privacy encompasses the decision whether to have an abortion stemmed from the Due Process Clause, rather than the Equal Protection Clause, but it is understood socially as central to women’s equality. By the time Roe was decided, the abortion rights movement had migrated from its historical origins in the efforts to legalize birth control dating from the early twen­tieth century to serving as a key component of the mobilization of women for the second wave of feminism.24 The Supreme Court opinion in Roe, even cabined as it was by concern for physician decisionmaking, established the social understanding that a woman’s right to choose was at stake, not merely the de­criminalization of a medical procedure. As the Court itself recognized in the Casey opinion that reaffirmed much of Roe, control of one’s reproductive capacity is essential for women’s ability to realize other life choices, whether as individuals, workers, or citizens.25

Roe, however, differs from Lawrence in important ways, because it involved a far messier, more complex set of hierarchies than were present in the challenge to sodomy laws. At issue in the abortion litigation was not just gender hierarchy but also hierarchies of religious and professional medical authority. One marker of the complexity of Roe’s backstory is the broad range of legal arguments in the amicus briefs filed in the case. These included arguments that prohibitions on abortion constituted sex discrimination and discrimination based on poverty,26 as well as Thirteenth Amendment and Establishment Clause arguments.27 The Supreme Court did not rely on, or even acknowledge, any of these amicus briefs, but the decision sub silentio disturbed multiple hierarchies, especially those in­volving medical and religious establishments, in addition to the gendered control of reproduction.

By contrast, Lawrence was litigated narrowly, carefully constructed to avoid a challenge even to adultery laws, much less to laws banning prostitution or other socially disfavored but consensual sexual acts.28 In one hierarchy of sexualities (including queer and heterosexual identities), anthropologist Gayle Rubin placed sex workers, transgender people, and consensual sadomasochist activists at the bottom.29 The reality of this stratification remains in place post-Lawrence, and, with the exception of transgender people, the groups who reside at the bottom have moved very little if at all.

Lower federal courts have expanded the lacunae in the Lawrence opinion. For example, the Eleventh Circuit interpreted the Supreme Court’s statement in Lawrence that the decision did not involve children to justify holding that the liberty interest upheld in Lawrence was irrelevant to whether adoption rights could be made contingent on whether the prospective parents engaged in homosexual sex.30 Other courts have relied on the same language in Lawrence to find that laws prohibiting commercial sexual acts are constitutionally permissible.31

Although Roe has been dogged by the problems associated with challenges to hierarchy, I do not mean to argue that this one characteristic of Roe provides the sole explanation for why it remains a political lightning rod forty years later. That phenomenon is truly overdetermined, given that Roe was decided during an extraordinarily turbulent historical moment. It was decided during a period that was marked by the convergence of massive change in multiple arenas: a rev­olution in the nonmarital sexual practices of young adults, the end of the Warren Court, the dawning realization that in Vietnam the United States had for the first time lost a major military conflict, and the beginning of a realignment in electoral politics driven by the Republican Party campaign to build a then-new coalition of southern whites and northern social conservatives, including opponents of abortion.32

There is no way to prove the precise mechanisms through which these various issues interacted, to such powerful effect. But the fact that demands to re­verse Roe v. Wade became so dominant in, and instrumental to, the rise of con­servative politics in the 1980s should tell us that its social meaning and resonance far exceeded the bounds of a debate over decriminalization of a particular act or even how to categorize fetal forms of life.

Conclusion
The Supreme Court today appears to understand the ending of exclusions to be apex of its authority to conduct judicial review under the Equal Protection Clause. It seems far less bothered than it once was by stark social hierarchy, and more likely to accept that the benign operation of political and economic markets will lead to the optimal point of resolution for contestations over status. The rollback in affirmative action protections is merely one example. Judicial discourse in the past thirty years has contributed to, rather than inhibited, the stran­gling of egalitarian idealism in American culture.

This anti–civil rights tendency, however, is not written in stone. The last thirty years is not the next thirty years. There are historical moments when social and doctrinal change accelerates. For example, when the Court decided Roe in 1973, it had been only twelve years since it had ruled that a Florida law allowing women to opt out easily from jury service rationally reflected women’s predom­inantly domestic role in society.33 In 2003, the Court reversed a constitutional precedent of only seventeen years’ standing when it decided Lawrence.

Today, it has been seventeen years since Congress enacted the Defense of Marriage Act (DOMA), prohibiting federal recognition of same-sex marriages that are valid under state law.34 Perhaps the Court will resuscitate the charmed rhythm of the Hardwick-Lawrence sequence and rule this year that DOMA is un­constitutional.35 If it does, another unjust exclusion will fall.

Even if that occurs, however, it will remain an uphill battle for social justice advocates to dismantle the remaining hierarchy of sexualities and to achieve a ful­ler legal and social understanding that the freedom to define and practice one’s sexuality is a civil right.

President Barack H. Obama, Inaugural Address by President Barack Obama (Jan. 21, 2013), available at http://www.whitehouse.gov/the-press-office/2013/01/21/inaugural-address-president-barack-obama. ↩
410 U.S. 113 (1973). ↩
539 U.S. 558 (2003). ↩
347 U.S. 483 (1954). ↩
Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737, 788–91 (1989). ↩
See, e.g., Marjorie Connelly, Support for Gay Marriage Growing, but U.S. Remains Divided, N.Y. Times, Dec. 7, 2012, http://www.nytimes.com/2012/12/08/us/justices-consider-same-sex-marriage-cases-for-docket.html (“In a Pew poll conducted in October, 49 percent of respondents said they favored allowing gays and lesbians to marry legally and 40 percent were opposed. Four years earlier, in August 2008, the numbers were just about reversed: 39 percent in favor and 52 percent opposed.”). ↩
See, e.g., Robin L. West, Tragic Rights: The Rights Critique in the Age of Obama, 53 Wm. & Mary L. Rev. 713, 719–23 (2011). ↩
Wendy Brown, Suffering the Paradoxes of Rights, in Left Legalism/Left Critique 420, 420 (Wendy Brown & Janet Halley eds., 2002) (internal quotation marks omitted). ↩
Cf. Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 2–4, 139–140 (2011) (describing what Balkin calls “the Great Progressive Narrative”). ↩
E.g., Emily Bazelon, The Civil Rights Case of Our Generation, Slate (Dec. 7, 2012, 4:56 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2012/12/supreme_court_to_hear_gay_marriage_cases_the_justices_agree_to_hear_windsor.html (reporting on the Supreme Court’s decision to hear two same-sex marriage cases); see, e.g., Editorial, Next Civil Rights Landmark, N.Y. Times, Dec. 7, 2012, http://www.nytimes.com/2012/12/08/opinion/next-civil-rights-landmark.html; Chris Good & Pierre Thomas, Eric Holder: Gay Marriage Is the Next Civil Rights Issue, Abc News (Feb. 28, 2013, 7:00 AM), http://abcnews.go.com/blogs/politics/2013/02/eric-holder-gay-marriage-is-the-next-civil-rights-issue (quoting Attorney General Eric Holder); Susan Kelleher, Gregoire: Same-Sex Marriage “the Civil Rights Issue of This Generation,” Seattle Times (Nov. 6, 2012, 9:50 PM), http://blogs.seattletimes.com/politicsnorthwest/2012/11/06/gregoire-same-sex-marriage-the-civil-rights-issue-of-this-generation. ↩
See, e.g., Jackie Calmes & Peter Baker, Obama Says Same-Sex Marriage Should Be Legal, N.Y. Times, May 9, 2012, http://www.nytimes.com/2012/05/10/us/politics/obama-says-same-sex-marriage- should-be-legal.html. ↩
See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (precluding equal treatment for gays and lesbians unless state constitution was amended); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (excluding children not legally in the United States from public schools). ↩
See Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2175–78 (1996) (internal quotation marks omitted). ↩
See David von Drehle, How Gay Marriage Won, Time, Mar. 28, 2013, http://swampland.time.com/2013/03/28/how-gay-marriage-won (describing, in part, the selection of gay marriage as the Time cover story for that week). ↩
See, e.g., Connelly, supra note 6 (noting that “[i]n a Gallup poll conducted [November 2012], 73 percent of people between 18 and 29 years old said they favored [same-sex marriage]”). ↩
505 U.S. 833, 856 (1992). ↩
Stanley K. Henshaw & Kathryn Kost, Guttmacher Inst., Trends in the Characteristics of Women Obtaining Abortions, 1974 to 2004, at 12, 14 (2008), http://www.guttmacher.org/pubs/2008/09/18/Report_Trends_Women_Obtaining_Abortions.pdf; Rachel K. Jones et al., Patterns in the Socioeconomic Characteristics of Women Obtaining Abortions in 2000–2001, 34 Persp. on Sexual & Reproductive Health 226, 231–32 (2002), http://www.guttmacher.org/pubs/journals/3422602.pdf. ↩
478 U.S. 186 (1986); see Lawrence v. Texas, 539 U.S. 558, 578 (2003) (“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”). ↩
Lawrence, 539 U.S. at 581–84 (O’Connor, J., concurring). ↩
Perez v. Brownell, 356 U.S. 44, 64 (1958) (Warren, C.J., dissenting). ↩
Lawrence, 539 U.S. at 575. ↩
Nicholas Pedriana, Intimate Equality: The Lesbian, Gay, Bisexual, and Transgender Movement’s Legal Framing of Sodomy Laws in the Lawrence v. Texas Case, in Queer Mobilizations: LGBT Activists Confront the Law 52 (Scott Barclay et al. eds., 2009). ↩
See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003); cf. Laurence H. Tribe, Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893, 1947 n.207 (2004) (noting that the Massachusetts Supreme Judicial Court “relied heavily on the equal respect dimension of the Lawrence analysis”). ↩
Cf., e.g., John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America 314–15 (1988); Linda Greenhouse & Reva B. Siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 Yale L.J. 2028, 2042–46 (2011). ↩
See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 852 (1992). ↩
See Linda Greenhouse & Reva B. Siegel, Before Roe v. Wade (2012), available at http://documents.law.yale.edu/sites/default/files/BeforeRoe2ndEd_1.pdf, for a collection of the briefs filed in Roe, including a brief arguing that a prohibition on abortion was an unconstitutional discrim­ination based on poverty, id. at 324–28. ↩
See, e.g., id. at 339–46. ↩
Dale Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas 184–89, 193–96 (2012). ↩
See Gayle S. Rubin, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality, in Deviations: A Gayle Rubin Reader 137, 153 (2011). ↩
See Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804, 817 (11th Cir. 2004), reh’g denied, 377 F.3d 1275 (11th Cir. 2004), cert. denied, 543 U.S. 1081 (2005). ↩
State v. Freitag, 130 P.3d 544, 545–46 (Ariz. Ct. App. 2006) (holding that the defendant “reads Lawrence too broadly”); People v. Williams, 811 N.E.2d 1197, 1198 (Ill. App. Ct. 2004) (holding that a prostitution statute does not violate any fundamental right); State v. Thomas, 891 So. 2d 1233, 1237 (La. 2005) (stating that “there is no protected privacy interest in public, commercial sexual conduct”). See generally J. Kelly Strader, Lawrence’s Criminal Law, 16 Berkeley J. Crim. L. 41 (2011). ↩
See, e.g., D’Emilio & Freedman, supra note 24, at 330–32, 347–49; Greenhouse & Siegel, supra note 24, at 2052–67. ↩
See Hoyt v. Florida, 368 U.S. 57, 62 (1961) (“We cannot say that it is constitutionally im­permissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.”). ↩
See Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (codified at 1 U.S.C. § 7 (2006) and 28 U.S.C. § 1738C (2006)). ↩
See Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), cert. granted, 133 S. Ct. 786 (2012), which may produce an opinion analyzing whether the Defense of Marriage Act is constitutional. ↩
 

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