Thanks also to Dean Moran and to all the other members of the Rutter Award Selection Committee.  When I look at the list of prior UCLA Rutter Award winners, the thought that occurs to me is: What am I doing up here?  That may be the reaction of some of you as well.  Well, thanks to the com­mittee for believing me worthy of this incredible honor.

Many thanks to Pavel Wonsowicz, a brilliant teacher and collaborator, and winner of this award just last year.  I am honored to be on your team.  Thanks also to Jerry Lopez, located right across the hall from me.  No matter how busy he is, Jerry is always somehow available as a sounding board, a source of encour­agement and ideas, and a great mentor.  Thanks also to David Babbe.  A special thank you to my amazing and supportive assistant Kasse Reyes who helps keep everything humming along, and thank you to Dean of Students Elizabeth Cheadle and Assistant Dean Sean Pine, Pei Pei Tan, and the entire Records Office staff.

I am of course indebted to, more than anyone at UCLA, my current and former students, some of whom are here today.  Thanks for coming.  We work hard together every day, and we have fun together almost every day, and we grow together, and I am always so happy to hear of your successes.  My students are the reason I am lucky enough to say: This is the greatest job in the world.  And I think I say it almost every day.  Not every day—let’s not get carried away.  But suffice it to say that you all make me so very happy every day I come to work with you.  I remember a day last semester in Wills & Trusts, in the middle of some class in the middle of the semester, when we all tend to drag a little bit, where I saw this piece of paper going from person to person, and I remember getting a bit annoyed, and thinking, “Could they really be passing notes?  Do people still do that?  So cute!”  Standing here today, I’m really glad I did not grab the paper and tear it up or something dramatic, because Ryon Nixon and Sharon Hing informed me just a few weeks ago that that paper was, in fact, a student petition asking that I get the Rutter Award.  So that would have been awkward.

Most of all, thanks to my family.  I was born in Westwood, not too far from here.  My high school is close by and graduation was at Pauley Pavilion.  I attended UCLA both as an undergraduate and for my master’s degree, and now my parents Michael and Claudine are back to see me at UCLA again for another very special day.  Thanks Mom and Dad.  Finally, thanks also to my beautiful, fantastic, accomplished, wonderful wife Samantha, and to my two boys Benjamin and Max, who all managed to get here today. 

I think the expectation might be that when someone is recognized with an award for their teaching, and then that person is going to read prepared remarks about teaching, the speech is going to be awesome.  But as my students no doubt could tell you, I can be a very awkward public speaker.  I think teaching is really the antithesis, the complete opposite, of performing, and, quite frankly in my case, it shows.  So preparing a speech is a totally different skill from what I think I am being recognized for.  But I will do my best.

For me, effective teaching involves five somewhat unrelated skills: (1) Plan­­ning, intensively, a path of learning.  (2) Listening as hard as you can to where students are and how they are experiencing the material.  (3) Connecting with those different groups of students at those various places.  (4) Moving with them to the next small step on the learning path through a sequence of applied learning and critical discussion.  (5) All with genuine empathy.  Over and over and over and over and over.

And, for me, I’ve found the best way to move with students along that learning path involves practice and feedback.  With eighty students in a class, I can’t always give the feedback as much as I’d like, though I like to meet with every student at least once to do some work together, so the students are given the tools to assess their own performance at every step in the process.  It’s not magical—it’s hard work.  We read a case.  We discuss the rule.  We apply it to facts.  Many, many, many times, through practice multiple-choice problems, multiple-choice midterm examinations, practice-writing problems, and class discussions.  Only then, with a strong grasp of basic concepts, do we go beneath the surface of the rule to the purported reason for the rule, and that is when things start to get fun—reading the cases, challenging them, contending with them, arguing for and against the rule or whether the stated reasons and actual reasons for the rule are the same.  That’s when things are working.

But it doesn’t always work.  When this process is successful, it is only after a lot of hard, hard work, for the teacher, and hard, hard work for the student.  If I am able to point to any success as a teacher, it depends entirely on the caliber of student who goes to UCLA.  The kind of student who, when actively invited to get involved in the learning process, is willing to work their tail off.  I’ve seen it.  While I have definite room for improvement as an instructor, I do take pride in the fact that my students are always aware of what they are doing and why they are doing it, where they’ve been and where they’re going, how they’re doing before the big final and where they need improvement.

But it’s difficult.  And reacting to student learning in order to maximize future learning has its consequences.  For one, what you say in class and where you end up in class is not always predictable.  Or, as one student charitably put it in an evaluation: “It amuses me that Professor Goodman stammers, does not seem to know what he is going to say next, and is frequently at a loss for words.”

So today, I am thrilled to receive this award, and proud to be part of an amazing school like the UCLA School of Law.  What we actually do with our students during these three years of law school—what we actually teach while they invest heavily in their own education—is I believe more important than it has ever been.  And one of the things that makes this school so successful is this shared awareness by our faculty.  This school has always challenged itself to excel and innovate and change, and to challenge the larger legal educational community to do the same.

There’s a sense in the legal education community that our 140-year-old tradition of legal education is growing stale.  With the notable exception of the Clinical Education movement (started in large part right here nearly fifty years ago), we still pretty much do what we’ve been doing for a long time now, except we’re nicer about it and ask less Socratic questions than we used to.  And people at this law school and in law schools across the country have responded to what is starting to be called a crisis in legal education with conferences, reports, and countless academic studies about what we might be teaching at law school and how we might teach it in order for our students to thrive.

Recently, we have had the Carnegie Report and the Best Practices for Legal Education report, as well as a recent Association of American Law Schools conference, all devoted to the topic of what our curriculum looks like, and what it could look like.  This increasing interest in legal education reform is a great thing.

But if I can make one small suggestion about the direction of that legal education reform.

As Jerry Lopez has pointed out to me, a big problem we have is a problem of memory.  That is, most of what is being said about legal education reform has already been said, in some cases many decades ago.  And then forgotten.  And then said again.  And then forgotten again.  The problem is not so much in the field of idea generation; indeed, that’s where we are good.  The problem is in providing otherwise very busy professors who must also publish and show professional development the time and the resources to experiment and imple­ment innovation in the classroom, sometimes succeeding and sometimes failing.  Putting forth innovative ideas and hypotheses is one thing.  But actually being innovative in the classroom is time consuming, risky, and frequently comes with little or no professional reward.  Again, I repeat my thanks to Mr. Rutter and the UCLA School of Law, for doing so much to encourage and recognize excellence in this very area.  And in the rare instance when an instructor bucks the odds, and does actually implement innovation, and reaches some level of success, there’s that memory problem again.  It frequently fades away because it stays with just that person.  It may be reported, but it is rarely duplicated or improved.

We are very good at knowing what others are writing about within a given legal subject, and using or responding to that scholarship to make new points.  But I think we are not very good yet at reporting on how we teach law, consuming reports on how we teach law, and responding to those reports to make new points.  The high caliber and robust dialogue we have in the academy about the law is missing when we discuss the practice of how to teach law.  It’s there, but it’s not the same.  Instead, despite our best intentions and lots of conferences and reports, we nonetheless frequently revert to the norm as a starting point with most new teachers we hire—the lecture hall, the case book and the teacher’s manual.  Talk about having to reinvent the wheel.  We are making and discarding lots of very good wheels.  Effective legal education reform is happening with some regularity—we are just having a really hard time knowing when it is happening, and keeping track of those specific materials and techniques.

For example, the Best Practices report asserts that we should consider using a problem method of instruction alongside or even instead of the case method for second and third year students, after a first year of case method.  That sounds intriguing—but where can I buy that textbook?  Actually there is one for Remedies.  One.  And it has not been updated in two decades, despite major changes in the law.  And it’s kind of small.  Our efforts have not been directed towards creating user ready work product that facilitates innovation in how we teach, and making it a profitable career advancer for instructors to develop that work product.

I teach using the case method.  And I’m letting my students down in some important ways.  Let’s consider the larger instructional goals we are trying to accomplish with three years of law school.  Everyone has their own idea, but I’ve got six instructional goals in mind.

First, research: Our students should be able to learn the research skills necessary to find primary sources of law and secondary sources of scholarship.  Second, reading: Our students should be able to process and synthesize primary sources of law and secondary sources of scholarship.  Third, thinking critically: Our students should be able to think critically and independently about the law.  Fourth, marshalling evidence: Our students should be able to contend with facts effectively, through investigative processes and effective presentation.  Fifth, arguing: Our students should be able to argue, orally and verbally, as litigants, negotiators, counselors, and scholars.  And sixth, service: Our students should struggle to understand the sometimes conflicting roles of the lawyer as client counselor and the unique role of the lawyer within the larger society.

Now, where I’m at?  Using the case method, I’m not doing a terribly good job.  It doesn’t really matter what subject it is.  I think I’m hitting the second and third skills reasonably well.  I think most of our case method classes hit that second and third skill reasonably well.  When there is time, I work on the fourth skill a tiny bit and the fifth skill a bit more, but there’s never much time.  I feel horrible about the amount of time I spend on that sixth skill, which is pretty much not at all.  And as far as research skills?  Never happens.

I should be able to do more for my students than this, whatever I am teaching.  And I know “that’s what the clinics are for,” but students do not and cannot take loads and loads of clinical courses and skills-based courses to pick up the slack.  It’s not that we don’t have classes that address these other skills.  In particular, at UCLA, we do have several.  Indeed, we offer one amazing class in par­ticular, by far the best of its kind in the country, where all of these skills are taught, and I was fortunate enough to teach within its unified curriculum for eight years—Lawyering Skills.  There is no better skills class offered in the country, and the seven instructors who teach it—Julie Cramer, Skye Donald, Tom Holm, Sarah Korobkin, Jason Light, Kerry Lyon Grossman, and Jyoti Nanda—work harder at providing our students with the complete panoply of skills they need to succeed than I do, and perhaps harder than any other teachers in the school.  Their work is invaluable.  But for the students it’s just one class.

I wish that when I am teaching my large lecture courses, I could be more efficient and effective at delivering training regarding the larger set of skills our law school graduates need so the students get more repetition and training across the six skills.  It’s how we get better bar exam performance, better lawyers, better scholars, better leaders.  Going forward, I know that’s what I want to change.  And I know many of my colleagues feel the same way, and have developed papers for students to write, projects, learning exercises, and other materials.  I am currently attempting to develop such a set of materials for Remedies, and Sam Bray has been helping, but we both agree it’s very rough going.

My sense at this point is that a granular, skills-based approach to a doctrinal course might be a good way to go.  Why not just teach cases?  Simply put, I’m leaving some students behind, unnecessarily.  When a student is asked to read the typical case as presented in many casebooks, the student is being asked to do a lot of things at once.  Sometimes, that’s a good thing.  But I believe that, more often than we may care to recognize, frequently it is not.  Students assigned a case are being asked to simultaneously learn a rule, consider the reason for its existence, practice how it might be applied to a set of facts, and critically analyze its success and its collateral consequences.  All at the same time.  Contrary to what is asserted in Carnegie and Best Practices, I don’t think students master this all-at-once approach in their first year.  Some do.  But I believe most of those students already had that skill when they came in.  Many don’t have that skill or struggle mightily with it.

But there is no dignity in this struggle.  It is unnecessary.  While there is nothing better than a case for illustrating arguments that apply the law to a set of facts and inviting critical discussion regarding the efficacy of the rule—we might get greater efficiency and greater success among a larger group of students by disentangling the learning tasks.  Basic learning theory.  Isolate the learning tasks at the outset.  Let’s ask students for higher order critical analysis of a case only after a student has mastered certain preliminary tasks.  Like learning the basic rule or conflict between different sets of rules.  And then applying those basic rules to a set of very basic hypotheticals, to check for fundamental understanding.  Let’s even task the students with researching and finding that rule for themselves.  And after we achieve mastery of the rule through research and application to practice problems, now let’s read some cases, ready to appreciate what a court has done, or snicker knowingly at what it failed to consider.  After in-depth case analysis, let’s not stop with just cases, merely because Dean Langdell used only cases, so long ago.  Let’s make it even more challenging.  Maybe let’s have students read the briefs written for a case without reading the opinion, and argue the case themselves.  Let’s have other students judge those arguments and write opinions.  Then let’s read the actual case and have at the judge who wrote it, because we had to wrestle with the same problem ourselves.  Then let’s move on to the next unit in the class and start the process over again.  This process has the added benefit of probably being a lot of fun, and I like fun.

There is no better way for a student to really learn the ins and outs of a legal doctrine than to experience it as a lawyer would, or a scholar tasked with producing scholarship would.  I am looking for ways to do that.  And I hope that when I do, others can use those materials, or reject those materials as ludicrous and embarrassing, like many new ideas are, or improve upon them, or respond to them by taking things in a different direction.  I want to have that methodological conversation based on actual classroom experience rather than hypothesis.  Let’s hope we can keep working on adjusting the incentives to make it professionally and financially profitable for instructors to join in.  It’s the students who will benefit, more than anyone else.  For me, that is the direction I hope my teaching career can take from here.

In the meantime, I am so proud, and honored, and humbled to be recognized with the Rutter Award.  My deepest gratitude to Paul Rutter and Dean Moran and the UCLA School of Law.  I love my job.  I love my students.  I love the law.  I love my family.  I love the Dodgers, but it’s only March.  I love the struggle ahead, because when I think about the students I work with I am optimistic about where things are heading.  Thank you for this day, which I will always remember.  Going forward, I will try to live up to the standard of excel­lence I know this award stands for.  Thank you very much.

Ultimately, however, I came away from the article feeling frustrated.  As I thought about why I felt that way, it occurred to me that I felt the same way when I finished George R.R. Martin’s book A Dance With Dragons.  When a 1040 page book that is the fifth in a series ends on a cliffhanger, one is—I think—entitled to be a tad peeved.  Although Professor Lin’s article is not quite so lengthy as A Dance With Dragons, by my count it leaves the reader with not just one but eleven cliffhangers.

Lin’s article thus called to mind my former University of Illinois College of Law colleague John Nowak’s advice that the way to become a successful professor is to “[t]ake an obscure little problem that no one has thought much about, blow it out of all proportion, and solve it, preferably several times, in prestigious law reviews.”²  Unfortunately, other than publishing in a prestigious law review, that is not advice Lin chose to follow in The New Investor.

Let us start with Nowak’s recommendation that one select “an obscure little problem.”  Lin violated all three of the precepts contained therein.  Instead of one problem, he chose many.  Instead of an obscure problem, he chose very important ones.  Instead of a little problem, he chose very big ones.

The issues that Professor Lin raises in his article include:

In sum, Professor Lin flags a substantial number of significant problems caused by the wide-ranging impact of technology on capital markets and securities regulation.  Unfortunately, he has not yet solved any of them.

Consider, for example, Lin’s treatment of flash crashes.  His discussion ends by noting:

Yet, there is no discussion of how regulators might respond.

The discussion of how cyber crimes threaten capital markets concludes with the observation that “[c]ybersecurity prevention and protection efforts are undoubtedly difficult, but they must also be sensible, thoughtful, and not obstruct the promise and progress of cyborg finance.”³³  Lin therefore urges that the endeavor to balance these competing concerns “must be pursued vigorously because, ultimately, technological advances in finance may hold more promise than threat in the future.”³⁴  The reader is left wondering: (1) Assuming all turns out well, how do we effect such a balance, and (2) what happens if the future of computerized finance looks more like Skynet than HOLMES IV?³⁵

The section on how computer networks have created the linked problems that Lin calls “too fast to save” and “too linked to fail” ends by opining that “[h]arnessing the power of cy-fi’s speed and linkage while managing its risks will be a critical challenge for financial regulators in the coming years.”³⁶  How regulators might approach—let alone resolve—those challenges is a question to which Lin provides no answer.  Likewise, the question of how the SEC and other financial regulators should deal with technological change is left unanswered.  We are told that “[l]aw needs to better situate itself at the intersection of technology and finance in order to remain relevant and effective.”³⁷  But we are not told how law can do so.

Lin’s failure to provide solutions is particularly frustrating when one comes to his discussion of the implications technological change has for the legal definition of the “reasonable investor.”  Here was a “problem that no one has thought much about,” albeit not a little one, crying out for a solution.  I left Lin’s analysis fully persuaded that technological changes and new insights from behavioral economics require us to rethink what it means to be a reasonable investor.  But I also left Lin’s analysis with no idea of how courts might go about reframing the existing legal definition to take cognizance of those developments.  Telling the reader that “regulators need to become more mindful of the dynamism and realism of the new investor model if they hope to remain relevant” is not a solution.³⁸

What makes Lin’s failure to offer a solution to this problem even more frustrating is that this is one context in which his interest in broader social questions may well prove relevant.  In United States v. Sayre,³⁹ the Ninth Circuit held that a district court had not abused its discretion by refusing to instruct the jury in a securities fraud case as to the meaning of “reasonable investor.”⁴⁰  The appellate court explained that “[t]he term ‘reasonable investor’ is a concept within the jury’s ordinary experience and understanding.”⁴¹  But if Lin is right about technology changing what it means to be a reasonable investor, and I am right that most investors are not cyborgs, will it remain the case that the everyday experiences of ordinary jurors will equip them to decide questions of materiality?  Put another way, will Wall Street’s Skynets be able to find a jury of their peers?

* * *

In sum, if one wants a broad survey of technology and capital markets from which one could mine multiple problems one could proceed to solve, “preferably several times, in prestigious law reviews,” Lin’s article will serve the purpose admirably.  Indeed, in closing, I urge Lin himself to do so.  His article demonstrates a command of several relevant literatures that will give him a launching platform from which to move to detailed analyses of the problems he has identified.  Just skip the cliffhangers.

These challenges to the contraception requirement are the most prominent of a rash of cases challenging antidiscrimination rules in the name of religion.  Bakeries and bucolic inns close their doors to same-sex couples,² Christian schools fire employees who get pregnant while unmarried,³ and nurses protest even taking the blood pressure of abortion patients.⁴  At the same time, we see calls for exemptions in antidiscrimination measures being debated in state legislatures.  In every case, the refusal to provide services or equal treatment is rooted in religious beliefs.

These cases and legislative debates pose fundamental questions: Does the right to religious freedom include the right to impose your views on others?  Does it include the right to impose your views on a diverse workforce?  On customers and patients seeking services you offer the public?  Does it include the right to close the door on customers—in your office or your bakery or your emergency room—because you disagree with the person seeking services?  This Essay briefly addresses these questions by placing today’s debate in historic context and by addressing the most common arguments proffered in defense of the religious objector.

It is a not a surprise that we are seeing this pitched battle at this moment; we often see conflicts of this nature at moments of historic social change.  During the civil rights era, we saw resistance to racial integration couched in terms of religious liberty.  For example, Piggie Park, a franchise of barbecue establishments in South Carolina, resisted mandates to integrate places of public accommodation.  Its owner argued that “his religious beliefs compel[ed] him to oppose any integration of the races whatever.”⁵  Religion was also invoked to resist interracial marriage in the case of Loving v. Virginia.  The lower court judge even stated that “Almighty God . . . did not intend for the races to mix.”⁶  And as late as the 1980s, in the U.S. Supreme Court, Bob Jones University sought to defend a discriminatory policy on the grounds that “the Bible forbids interracial dating and marriage.”⁷

Similar challenges arose as society moved to accord women greater equality.  Religiously affiliated schools, for example, invoked religion as a justification for compensating married women less than married men, on the basis of religious beliefs that men are supposed to be the heads of households.⁸  In every case, the courts rejected the claims.  In every case, the courts found the principle of nondiscrimination to outweigh the religious freedom concerns.

We are now at another historic juncture—this time with gains for lesbian, gay, bisexual, and transgender (LGBT) rights and renewed protection of women’s equality.  There is extraordinary progress in the movement for equality for LGBT people.  We have seen the end of Don’t Ask, Don’t Tell.  The Obama administration is no longer defending the constitutionality of the Defense of Marriage Act.  An increasing number of states are recognizing same-sex relationships.  And cities, states, and agencies are increasingly adopting measures that prohibit discrimination based on sexual orientation and gender identity.  We also see progress in women’s equality in the form of the long overdue prescription that employers must include contraception as preventive care in their insurance packages.  As a result, the debate over religious exemptions has intensified once again.  Those who object to these culture changes on religious grounds are now struggling to slow the progress or carve out enclaves in which change can be halted.

The issue is currently most visible and vociferous in two contexts: mandates of nondiscrimination against LGBT people in public accommodations and the federal rule requiring coverage of prescription contraception in insurance.  In today’s discussions, even those sympathetic to LGBT and women’s rights raise questions suggesting that different rules might be acceptable when discrimination is animated by religious belief.⁹  These objections should not be countenanced any more than were those made to civil rights or to equal pay for women in the name of religion.  While the constitution protects the right of individuals to worship and have diverse beliefs, the right to religious exercise does not extend to conduct that would threaten the rights, welfare, or wellbeing of others.

* * *

When inns and bridal shops and bakeries and photography shops refuse to provide their services to celebrate same-sex relationships, people often ask: “What’s the harm?  What if there is another establishment nearby that would provide service?  Do you really want someone who objects to your wedding making your cake or hosting your wedding reception?”  In thinking about these questions, it is instructive to examine other contexts.

The court in Piggie Park did not ask whether there was another restaurant nearby where African Americans could be served.¹⁰  The court did not care whether the customers could have been accommodated elsewhere.  By that point in time, the nation had come to understand the harm created by a “Whites Only” sign in a restaurant window.  We understood the imperative of ending discrimination: African Americans could not achieve equality if we continued to sanction discrimination in businesses that otherwise opened their doors to the public.  As a prescient court stated in 1890 in Ferguson v. Gies, when addressing the right of a restaurant to segregate its seating:

Moreover, when we thought of restaurants turning away customers because of their race, the question was not, “Why would African Americans want to dine at Piggie Park—or for that matter at the lunch counter in Woolworths?”  We should not reason differently in the LGBT context.  When it turns away a lesbian or gay couple, the inn that advertises as a destination-wedding site, or the bridal shop that opens its doors to the public, in effect posts a “Heterosexuals Only” sign in its window.  It is insufficient to answer that the U.S. Constitution accords different levels of protection to race than to sexual orientation.  Sex, after all, gets less protection than race as well, but we would not tolerate the bakery with a “Men Only” sign on its door, no matter how heartfelt the objection of the owner.  We cannot remedy discrimination and historical exclusion if we sanction such indignities.

* * *

The second manifestation of this issue concerns the requirement that contraception be provided as a part of health insurance.  Here, I often confront objections like this: “Is access to birth control really a state interest sufficiently compelling to require compliance with the mandate in the face of religious objections?  I might be able to agree with you when LGBT people are turned away from places of public accommodation, but this is different.”  I offer four ways to respond, all of which speak to the state interest in sex equality that justifies the requirement. 

First, and most fundamentally, access to contraception is critical to women’s equality.  Just imagine what the world would look like for women in its absence.  Contraception allows women to control decisions about childbearing and thus about family, education, work, and politics.¹²  As the plurality in Planned Parenthood v. Casey emphasized, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”¹³  The state interest in sex quality is thus inexorably tied to access to birth control.

Second, excluding prescription contraception from insurance is about excluding a service only women need—and that most every woman uses at some point.¹⁴  It is, for that reason alone, sex discrimination.¹⁵  In that sense, it is no answer that the contraception rule addresses an exclusion from insurance and not a ban on access to birth control.  Imagine an insurance plan that excluded coverage of care for children with Tay-Sachs, a disease almost exclusively affecting Ashkenazi Jews; of treatment for sickle cell anemia, a disease disproportionately affecting African Americans; or of treatment for testicular and prostate cancer.  Would the response in those cases be, “Well, it’s just insurance coverage.  People aren’t actually barred from getting the services”?  I doubt it.¹⁶

The third point takes the second to a deeper level.  What does it mean to refuse women who want access to contraception?  What does it mean for a court or a legislature to embrace an exemption to a rule that an insurance plan provide for contraception?  It is to embrace a view that the proper role for women is to accept pregnancy or to refrain from nonprocreative sex.¹⁷ What else, after all, can it mean to instantiate in law the view that it is objectionable to facilitate women having the means to prevent pregnancy?

But long gone are the days when women could be excluded from the legal bar on the grounds that “[t]he paramount destiny and mission of woman are to fulfill the noble and benign office of wife and mother.”¹⁸  And we have rejected the notion that women can be presumptively exempt from juries on the grounds that a “woman is still regarded as the center of home and family life”¹⁹ or that women can be barred from accessing contraception.²⁰  More recently, in the context of abortion, the Supreme Court stated “[t]hat these sacrifices [to become a mother] have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others . . . cannot alone be grounds for the State to insist she make the sacrifice.”²¹  We cannot tolerate using the law to perpetuate these stereotypes.

Finally, some argue that refusing to provide coverage for contraception is simply discriminating based on what service or good is being sought, whereas refusing to provide a cake or a reception room for a celebration of a same-sex relationship is discrimination based on status.  Discrimination based on a good or service, so the argument suggests, does not rise to the level of status discrimination.

This argument harks back to one we have come to reject in the LGBT context.  Sodomy laws were once defended on the grounds that they condemned certain sexual conduct, not gay people.  In Bowers v. Hardwick,²² for example, the Court framed the issue as whether there is “a fundamental right [of] homosexuals to engage in sodomy,” and upheld the constitutionality of a law that made sodomy illegal.²³  More than fifteen years later, the Court wrote:

To cast the contraception mandate as about a good, perhaps to be denied the way other services are denied in insurance, is similarly a “failure to appreciate the extent of the liberty at stake.”²⁵  The Court in Lawrence v. Texas compared the liberty at issue there to that involved in personal decisions about “marriage, procreation, contraception, family relationships, child rearing, and education.”²⁶  Looking to Planned Parenthood v. Casey, the Lawrence Court noted “the respect the Constitution demands for the autonomy of the person in making these choices,”²⁷ emphasizing that “[a]t the heart of liberty is the right to define one’s own concept of existence.”²⁸  That, and not just a pill, is what is at stake in today’s debate about contraception.  The reasoning of the Lawrence Court readily applies: “While it is true that the [rule] applies only to [a service], the [service] targeted . . . is closely correlated with being [a woman].  Under such circumstances, [the] law is targeted at more than [a service].  It is instead directed toward [women] as a class.”²⁹

* * *

The question these cases present is not whether we should let society continue to discriminate against LGBT people or women.  It is whether we should grant institutions and individuals with devout religious objections exemptions from societal mandates against discrimination.  It all goes back to the core principles: What are we trying to achieve with mandates to end discrimination?  What harm are we addressing?  Simply stated, we are striving to end the second-class status we have reified in the law for certain classes of people.  And in doing so, we are seeking to foster equality.  We are seeking to eliminate the stigma and harm of having the door closed in your face.  A patchwork of fairness and dignity is not equality.

In June 2010, as the Proposition 8 trial was wrapping up in a San Francisco courtroom, Federal District Judge Vaughn Walker put this question to Ted Olson, the plaintiffs’ counsel, who was about to make his closing argument on behalf of the two same-sex couples seeking the right to marry:

Ted Olson replied: “I think the case that you’re referring to has to do with abortion.”  “It does, indeed,” said the judge.²

Running through commentary on the certiorari grants in Hollingsworth v. Perry³ and United States v. Windsor⁴ are continual references to Roe v. Wade.⁵  “Watch out!  Don’t go there!  Look what happened forty years ago when the Supreme Court granted women the right to abortion,” warn critics.  The Roe-centered backlash narrative, it seems, is the trump card in many discussions of the marriage cases.⁶  But what do we mean by backlash in the context of a Supreme Court decision?  What might an accurate account of what occurred before and after Roe v. Wade actually have to impart?  And why should we care, on the fortieth anniversary of Roe, the tenth anniversary of Lawrence v. Texas,⁷ and the eve of Perry and Windsor, about getting this story right?⁸

The premise of the Roe backlash narrative is that there is something about the judicial declaration of minority rights that produces an especially virulent and polarizing reaction among losers who would not respond in a similar fashion to legislative defeat.  On this view, court decisions that vindicate minority rights or that pick winners of vigorously contested claims have the harmful effect of shutting down ordinary politics and giving birth to a new, deformed politics: “Roe Rage,” as one of us has labeled it.⁹  Winning, in other words, can be even worse than losing.  The message seems to be that minority claimants should stay away from courts. 

But is that the right message?  Is the Court’s forty-year-old decision in Roe the primary source of the ongoing conflict around abortion?

With respect to the role that Roe has come to play in the backlash narrative, we refer readers to the Yale Law Journal article we published in 2011, Before (and After) Roe v. Wade: New Questions About Backlash.¹⁰  We have added the article as a new afterword to the second edition of our 2010 book, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling.¹¹

In that work, we ask what conflict over abortion before Roe might teach us about the logic of conflict after Roe.  Examining the period before the Court ruled allows us to perform something of a natural science experiment to investigate what forces were capable of generating political conflict over abortion in the absence of judicial review.  We found facts absent in most discussions of Roe and backlash.  Consider these features of the abortion conflict before the Court ruled:

As we show, abortion was already entangled in party politics before the Court ruled.  That dynamic did not begin but instead continued in the years after the decision.  The entanglement of abortion in party realignment explains how, over time, Republicans and Democrats came to switch positions on the abortion issue—leaders before the base—and assume their current polarized positions on abortion.  This change in the structure of the conflict did not happen in the immediate aftermath of Roe but instead took nearly twenty years to accomplish.  Our paper argues that when you line up the evidence, political realignment better explains the timing and shape of political polarization around abortion than does a court-centered story of backlash.¹⁷

Of course, judicial decisions like Roe and Brown¹⁸ provoke conflict.  The question is whether judicial decisions are likely to provoke more virulent forms of political reaction than legislation that vindicates rights.  There was, is, and will continue to be conflict over abortion, same-sex marriage, and indeed the very meaning of equality.  When minorities seek to unsettle the status quo and vindicate rights—whether in courts, legislatures, or even at the polls—there is likely to be conflict and, if the claimants prevail, possibly backlash too.  To the question of whether one can avoid conflict over such issues by avoiding courts, the answer from an accurate history of Roe v. Wade is: No.  The abortion conflict escalated before the Supreme Court ruled.

To the further question of whether one should avoid asserting claims of rights for fear of igniting conflict, the answer must be: It depends. Bringing about change is hard work, including the hard work of deciding when, costs and benefits considered, litigation and/or legislation are worth pursuing in the first place.  Even litigation losses have produced gains for marriage equality, as Douglas NeJaime and others have shown us.¹⁹  In each case, a contextual judgment should drive the decision whether to make rights claims in court—not the assumption that progressives will surely get punished if they go to court seeking rights out of turn.

So wrote two very recent law school graduates, Nan Hunter² and myself, in a 1976 law review article, one of the first ever published on custody and visitation disputes between a gay and a straight parent after the end of a heterosexual mar­riage.  Over thirty-five years later, I would write the identical words.

Like many in the heady initial days after the U.S. Supreme Court’s opinion in Lawrence v. Texas,³ I thought that case was a game changer.  Lofton v. Secretary of the Department of Children & Family Services,⁴ a case challenging Florida’s ban on lesbian and gay adoption, had been argued in the Eleventh Circuit before Lawrence was decided.  After that opinion came down, the parties in Lofton filed supplement briefs.  The poetic rhetoric of liberty and freedom in Lawrence was a bit hard to pin down doctrinally, but in a conversation I had with Nan shortly after the ruling, we both agreed that whatever it meant, surely gay men and lesbians could no longer be denied the ability to adopt a child on the basis of their sexual orientation alone without violating the Constitution.  We even thought it might be harder for a court to use a parent’s sexual relationship as a basis for denying or restricting custody or visitation.

We were wrong.  The Eleventh Circuit ruled that Lawrence established no fun­damental right.⁵  It also became one of the first courts to quote Lawrence’s assertion that “[t]he present case does not involve minors”⁶ and to skew the meaning of that sentence away from the obvious—excluding sex with children from constitutional protection—and toward an interpretation excluding the claims of lesbian and gay parents and prospective parents from such protection.  In the past ten years, no lesbian, gay, bisexual, or transgender (LGBT) parent has suc­cessful­ly invoked Lawrence in his or her quest to keep custody of a child or block restrictions on the exercise of visitation rights.⁷

In fact, when it comes to assertions of constitutional rights, there is great sim­­ilarity in outcome between cases from the 1970s, in the wake of Roe v. Wade⁸ and the other rights-affirming rulings of that era, and those decided in the years following Lawrence.  In both time frames, when a child’s heterosexual parent has challenged the exercise of custody or visitation by a parent who has come out as gay or lesbian, the gay or lesbian parent’s assertion of a constitutional right has amount­ed to nothing.⁹

I illustrate the above point in the next section of this Essay.  I then argue that courts should no longer single out the nonmarital aspect of a parent’s new relationship—gay or straight—when deciding whether to limit a child’s exposure to that rela­tionship.  Advocates for lesbian and gay parents have long argued for a nexus test, banning consideration of a parent’s sexual orientation or nonmarital rela­tionship absent evidence of its adverse impact on the child.  Though a court can properly consider all parental choices that have an adverse impact on a child, it should ignore all parental choices that do not adversely affect a child.  When it comes to a parent’s new relationship, these principles apply no matter what the sex of the new partner and regardless of whether the couple has married.  The nonmarital nature of the relationship and the gender of the new partner or spouse are irrelevant to de­termining a child’s best interests.  A recent California opinion nicely illustrates this principle.¹⁰  And it did not need to cite Lawrence or other constitutional principles to justify its conclusion.

I. Gay and Lesbian Parents Have Not Won by Invoking Constitutional Rights

In In re J.S. & C.,¹¹ a 1974 New Jersey court cited numerous cases, including Roe v. Wade, for the privacy rights affording protection to “family relationships” and “child rearing.”¹²  The court acknowledged that restricting the relationship between the gay father and his children impeded the father’s exercise of those rights.¹³  Nonetheless, the court said the case presented “a most sensitive issue which holds the possibility of inflicting severe mental anguish and detriment on three innocent children”¹⁴ and then restricted the father during his visitation from having his lover present, living with an unmarried partner, or taking the child to a location where gay men gathered or participated in any “homosexual related activities.”¹⁵

In In re Jane B.,¹⁶ a 1976 New York court believed that Eisenstadt v. Baird,¹⁷ along with some lower court and state rulings, protected consensual sodomy against criminalization.¹⁸  This was something that the court explicitly said pro­tected “in essence, homosexuality.”¹⁹  But, the court continued, these cases did not extend protection to “children who may be affected physically and emotionally by close contact with homosexual conduct of adults.”²⁰  The court further explained that it was “not abridging . . . fundamental rights or privacy but concerns itself solely with the well-being of the child and . . . whether the . . . environment is a proper one,” which the court ruled it was not.²¹

In that case, the court added one sentence that is a hallmark of post-Lawrence cases.  It found, as an issue of fact, that the child was “emotionally disturbed”²² from living with her mother and her mother’s partner, thereby purporting to find a nexus between the mother’s relationship and harm to the child.  The only evi­dence to that effect, however, was the testimony of a school psychiatrist who said the child was living in an “abnormal atmosphere” and concluded the child was emotionally upset, something he admitted on cross-examination could have been caused by the divorce itself.²³

Post-Lawrence cases usually sound less moralistic than these earlier exam­ples, but they equally reject constitutional arguments and find it easy to identify some problem with the children allegedly caused by the parent’s relationship.  In Sirney v. Sirney,²⁴ a 2007 Virginia case, a father with custody of four children filed an action three years after the separation to restrict the visitation rights of the moth­er so that her partner could not spend the night during visitation.²⁵  The judge granted his request.²⁶  Two of the children, in chambers, expressed some “discomfort” and “awkwardness” with the mother’s relationship, and one said she preferred time with her mother alone.²⁷  The judge, restricting the mother from having any sexual partner overnight at her home when the children were there, said the case was “not at all” about the mother’s lesbian relationship.²⁸  An oblique reference in the opinion implies that an expert witness opposed the limitation.²⁹

On appeal, the mother argued that the order violated both equal protection and her “due process right to make decisions about her private conduct.”³⁰  The appeals court said it deprived her of neither.³¹  It disposed of the equal protection claim by pointing out that the restriction applied equally to any heterosexual rela­tionship.³²  The court said she was not deprived of her liberty interest because the decision was based solely on how the children reacted to her relationship, not the relationship itself.³³

In McGriff v. McGriff,³⁴ a 2004 case from the Idaho Supreme Court, a mother filed to modify a joint physical custody order because of the father’s same-sex relationship, a change in circumstances which the trial judge said would “generate questions from the girls and their friends regarding their Father’s lifestyle,” especially given “the conservative culture and morays [sic] in which the children live.”³⁵  The trial court ruled for the mother and granted visitation rights to the father on the condition that he not live with his partner during the visits.³⁶  The trial judge said the ruling was not based on the father’s homosexuality and cited some factors the mother never raised.³⁷

On appeal, the Idaho Supreme Court quoted extensively from Lawrence and said a parent’s homosexuality could not be a factor absent a nexus between it and harm to the child.³⁸  Nonetheless, it upheld the trial court, accepting without ques­t­ion­ing the judge’s statement that the decision did not turn on the father’s homosexuality.³⁹  The dissenting justice noted how unusual it was to recast a case brought by the mother for the sole reason that the father was living openly with his partner into a case about other factors.⁴⁰  The dissent also pointed out a fact the majority omitted: The court-appointed custody evaluator, in spite of his reser­vations about the dynamics between the mother and the father’s partner, recom­mended that the custody arrangement remain unchanged.⁴¹

Alabama provides perhaps the most dramatic example of the rejection of consti­tutional arguments.  In a 2004 case, L.A.M v. B.M.,⁴² the mother and father divorced when the child was almost four years old, and the mother had primary cus­tody for seven years.⁴³  Three years after she began living with her partner, the re­­­married father filed for a change in custody.⁴⁴  The trial judge ruled for the father.⁴⁵

On appeal, the mother invoked Lawrence in the following way: She noted that in a 1998 case, Ex parte J.M.F., the Alabama Supreme Court approved the transfer of custody from a lesbian mother to a heterosexual father, concluding that “[w]hile the evidence shows that the mother loves the child and has provided her with good care, it also shows that she has chosen to expose the child con­tinuously to a lifestyle that is ‘neither legal in this state, nor moral in the eyes of most of its citizens.’”⁴⁶  The mother in L.A.M. argued that Lawrence effectively overruled J.M.F. and “expressly confirm[ed] that moral disapproval of homosexual persons is not a legitimate basis for laws that disadvantage lesbians and gay men.”⁴⁷  The court disagreed, stating that Lawrence was a criminal case, that it did not overrule J.M.F, and that this case did not require the court to “address the law­ful­ness of a statute or the morality of homosexuality.”⁴⁸  “Instead,” the court con­tinued, “we must determine whether the evidence presented to the trial court supports its judgment modifying custody of the child . . . . We answer that question in the affirmative.”⁴⁹

Another Alabama case, decided in December 2012, epitomizes the irrel­evance of Lawrence in that state’s law, this time in the context of a mother with a male romantic partner.  In D.M.P.C.P. v. T.J.C., Jr.,⁵⁰ a pendente lite order gave the mother temporary custody of a two-year-old child.⁵¹  That order lasted three and a half years.⁵²  When the final custody hearing took place, the mother was living with her male fiancé in the home of her parents.⁵³  Also in the home were the child’s two half siblings, the mother’s children from her prior marriage.⁵⁴  Without factual findings, the trial court awarded custody to the father.⁵⁵

The appeals court pointed out that Alabama case law allows the trial court to consider the “moral needs” of the child and the “respective home environments offered by the parties.”⁵⁶  The mother argued that her sexual conduct should not be a factor absent evidence of detrimental impact to the child.  The appeals court rejected her argument.  It explicitly held that the trial court may, in an initial custody determination, “consider a parent’s sexual conduct as it relates to that parent’s character, without a showing that the conduct has been detrimental to the child.”⁵⁷  The appeals court assumed the trial court had made the findings nec­­es­sary to support the judgment and determined that the judgment was not “plainly and palpably wrong”; therefore, the judgment could not be reversed.⁵⁸

In a 2012 Kentucky case, Maxwell v. Maxwell, a lesbian mother was successful in overturning a custody award to the heterosexual father, but her ability to live with her partner remained an issue on remand, thereby demonstrating the limits of lower court applications of Lawrence.⁵⁹  In that case, the trial judge gave custody of three children to their father rather than continue a joint custody order with their lesbian mother.⁶⁰  The court order prohibited either parent from living with a nonmarital partner and said:

The appellate court reversed the custody determination and remanded, and it did cite constitutional law: Romer v. Evans⁶² for the error of singling out the mother for disparate treatment and Palmore v. Sidoti⁶³ for the error of basing cus­tody on the private biases of others.⁶⁴  But on the subject of the restriction on living with a nonmarital partner, the court did not cite Lawrence.⁶⁵  Instead it said that, while such a factor should not be dispositive on its own, the trial court could con­sider it as long as the focus was the children’s best interests.⁶⁶  This is hardly an af­firmation of the mother’s right to build a life with her partner.

In Maxwell, as in Sirney and numerous other cases,⁶⁷ the restriction imposed limits on the presence of any nonmarital partner as though that rendered the order more acceptable than a ban on a same-sex partner.  Arkansas Initiated Act 1, struck down on state constitutional grounds by the Arkansas Supreme Court,⁶⁸ banned adoption and foster parenting by any person living with a nonmarital part­ner, a provision that is still the law in Utah.⁶⁹  Such restrictions allow the con­versation to be about the superiority of marriage, partially deflecting attention from the same-sex aspect of a lesbian or gay couple.

II. A Court Can Evaluate a Child’s Relationship With a Parent’s New Partner, but Whether the Parent Has Married That Partner Is Irrelevant

The principle that a restriction on visitation is valid only if necessary to further a child’s best interests,⁷⁰ coupled with the protection that Lawrence should afford to nonmarital sexual relationships, means that no court should ever make a dis­tinction between an unmarried partner (same or different sex) and a spouse.  An unreported California opinion gets the reasoning right without citing Lawrence or any constitutional principle.⁷¹  In Bauer, a heterosexual father appealed a re­striction that denied him overnight visits as long as he remained living with any nonmarital female partner.⁷²  The order specifically awarded him overnight visits if he lived alone or lived with a spouse.⁷³  In other words, he would automatically have overnight visitation if he married the woman he lived with.  There was evidence at trial that the presence of the father’s specific partner was detrimental to the children.⁷⁴

The appeals court agreed that there was sufficient evidence of detriment, but it remanded, noting that “if [the father or his partner] were having a detri­mental effect on the children’s welfare during overnight visits, this detriment would not necessarily be remedied by their marriage.”⁷⁵  On remand, the trial court needed to “include in the order appropriate factors relating the children’s best interests in fashioning the visitation orders (because [the father’s] marital status alone is not a permissible basis).”⁷⁶  In other words, if the partner’s presence was detrimental to the children, then the court could restrict overnight visits in her presence even if the father married her.  What the court could not do was restrict her presence only for as long as the couple remained unmarried.

This is the proper focus for a court deciding custody or visitation.  Losing this focus could cause a supporter of same-sex marriage to believe that the problem with the restriction on the presence of a nonmarital partner is that same-sex couples cannot marry.⁷⁷  Oddly, the Maxwell court might have thought along such lines.  After remanding the prohibition on the presence of the mother’s nonmari­tal partner with the instruction that such factor “is not dispositive” and “must be ascertained with the children’s best interests in mind,” the court stated that, “[c]lear­­ly, changes in moral standards and the inability of same-sex couples to legal­ly marry are also relevant.”⁷⁸

If this reasoning implies that the unmarried status of same-sex couples is ir­re­levant only because those couples cannot marry, then that is the wrong approach.  Marriage should always be irrelevant.  If a parent’s marriage introduces into the children’s lives an adult whose presence is detrimental to their well-being, then the court can take that into account in deciding custody and visitation.  But a mar­riage should be entitled to no more respect when it comes to the best interests of children than the relationship a parent has with a nonmarital partner.⁷⁹

In Maxwell itself, the appeals court found that “no evidence was provided that demonstrated the relationship between [the mother and her partner] had any negative impact on the children.”⁸⁰  The two older children testified that they liked their mother’s partner and had no problems with her.⁸¹  It was, therefore, inappropriate for the court to remand the case to the trial court on the issue of a ban on the partner’s presence.  It is impossible to imagine such a ruling concerning a parent’s new spouse.

III. Revisiting the Nexus Test, Whose Time Has Come and Gone

For many years, going back to the early article I wrote with Nan Hunter, advocates for lesbian and gay parents argued for a nexus test, prohibiting con­sideration of a parent’s sexual orientation unless it could be shown to have an adverse impact on the child.⁸²  This was certainly an improvement over a rule that a parent living with a same-sex partner was per se an unfit parent,⁸³ or a rule like that in In re J.S.C. and In re Jane B., which presumed adverse impact on the child.⁸⁴  But more recent analyses recognize that a parent’s sexual orientation should be irrelevant to custody and visitation.⁸⁵  This is the preferable rule because a parent’s sexual orientation, in and of itself, can never have an adverse impact on a child.  A parent might not pay sufficient attention to a child’s needs and feelings or might choose a new partner who treats a child poorly.  These could have an ad­verse impact on the child.  But neither has anything to do with whether the pa­r­ent is gay or straight, married or not.

It is time to disallow consideration of a parent’s nonmarital relationship in custody and visitation disputes.  A court needs a very strong reason to ban someone from a child’s presence, and the nonmarital nature of the relationship should play no role in such a determination.  Certainly the awkwardness and discomfort that the Sirney children expressed in the presence of their mother’s partner, without more, is insufficient for such a ban.

A 1998 Maryland opinion provides a clear, unmistakable articulation of the nexus test in the context of a nonmarital partner:

Even this articulation misses the mark, however, because the nonmarital character of the relationship is not relevant.  If the presence of a parent’s new husband or wife causes “emotional and/or physical harm” to a child, then a court should restrict that stepparent’s presence.  And if any decision a parent makes causes “emotional and/or physical harm” to a child, then a court should make an order that reduces or eliminates that harm.  If another adult in the home of a parent demeans or abuses a child, the nature of the relationship between the parent and that other adult is irrelevant; it could be the parent’s cousin, sister, father, or friend.  Indeed, if a parent exposes a child to emotional and/or physical harm from any source, such as placing the child in an after-school activity for which the child is ill-suited, resulting in feelings of inferiority and low self-esteem, or employing a babysitter who slaps a child in the face to get him or her to behave, the court can impose a restriction on the parent’s choices.

A distinct rule concerning the presence of a nonmarital partner, even one as narrowly drawn as that in Maryland, singles out the existence of a nonmarital relationship as though that factor requires special monitoring by a court.  It does not.  The latitude parents have in raising their children should rarely be curtailed, and one standard should apply to all parental decisions.  Just as the nexus test for sexual orientation implies that a child might be uniquely harmed because a parent is gay or lesbian, the nexus test for the presence of a nonmarital partner implies that a child might be uniquely harmed because the parent has a new romantic partner he or she has not married.  Neither of these implications is appropriate.

Conclusion

In theory, there is a role for Lawrence v. Texas in this critique of any stan­dard that purports to apply a distinct test to the significance of a parent’s nonmari­tal sexual relationship.  But as the reasoning of Bauer v. Bauer demonstrates, there is no need to resort to constitutional principles to develop a rule that says a parent’s marital status is irrelevant to the question of whether the presence of a new adult in the home is detrimental to a child’s welfare.  Constitutional principles have not succeeded in the past, and if past is prologue, then that is unlikely to change.

Brian Tamanaha’s Failing Law Schools argues that American law schools now cost far too much to attend, given long-term trends in the employment market for people with law degrees.¹  For example, according to statistics compiled regarding the national graduating class of 2011, only 55 percent of graduates had found long-term, full-time jobs requiring bar admission nine months after graduation.  He proposes several different methods of reform, some of which involve loosening regulatory restrictions that inhibit the creation of alternatives to the largely homogenous model of legal education prevalent in the United States today.²

Professor Jay Sterling Silver criticizes Tamanaha’s proposals.³  Silver believes the proposals will lead to a stratified hierarchy of law schools, with only a few elite institutions continuing to provide the high-quality pedagogical experience that Silver assumes everyone now enjoys by attending law schools accredited by the American Bar Association (ABA).  Silver argues that Tamanaha’s reforms would force the vast majority of law schools to provide their students a “cut-rate education,”⁴ much to the detriment of the students’ future clients.

It would be harsh, but fair, to point out that Silver’s criticism of Tamanaha works as a kind of performative refutation of Silver’s central claim, which is that the traditional model of legal education teaches people how to think.  If how to think means how to think in a way that allows one to argue in a coherent and convincing manner, then Silver’s piece does no credit to that model.  On the other hand, if how to think means believing that making a string of unsubstantiated and often facially incredible assertions will sway readers to one’s point of view, then legal education has, at least in Professor Silver’s particular case, succeeded all too well.

Professor Silver’s response contains a number of unsubstantiated assertions.  This Essay addresses three of them: the current cost of legal education is an accurate reflection of the real cost of producing adequately trained lawyers, the scholarship produced by tenured law faculty has enormously beneficial effects on the operation of the legal system, and Tamanaha’s reform proposals would stratify legal education.  These claims illustrate how, in my view, the crisis of the American law school is in large part a product of the tendency of law school faculty to indulge in platitudinous self-congratulation.

I. Market Failures

Before turning to those assertions, we should note that Silver’s reply to the thesis of Failing Law Schools is oddly nonresponsive.  Assume for the purposes of argument that Silver is correct that the high cost of contemporary American legal education is unavoidable⁵ if we are to produce minimally competent lawyers.  It would seem to follow that, given Tamanaha’s analysis, minimally competent lawyers can be produced only at a cost that leaves very large numbers—indeed arguably a solid majority—of law graduates unable to secure a positive long-term economic return on their educational investment.⁶

Silver gives no hint that he disagrees with Tamanaha’s conclusions regarding the consequences of making law degrees costly to obtain.  This seemingly commits Silver to arguing for heavily subsidizing legal education.  Silver, however, ignores this and other practical consequences of his implicit concession of the main point of Tamanaha’s book, which is that the economic structure of legal education now results in many, if not most, new law degrees having negative net present value for their holders.⁷  This concession allows Silver to confine himself to the more congenial task of arguing that the current high salaries and low teaching loads of law faculty have enormous benefits for society as a whole⁸—although apparently not the sort of benefits that can be captured adequately by market transactions.⁹

Speaking of markets, Silver’s argument begins with a discussion of the changing market for law school admissions.  Conceding Tamanaha’s main point once again, Silver acknowledges that legal education now resembles the housing and mortgage derivatives markets, which inflated into speculative financial bubbles before bursting so spectacularly five years ago.  According to Silver, “the law school bubble is about to burst in a perfect storm of market correction.”¹⁰  Silver points out that applications to law school are down sharply over the past two years; he argues that this will lead to law schools relaxing their admissions standards, which will lead to lower bar passage rates, which in turn will depress law school applications even further.¹¹

What is missing from this analysis is any acknowledgment that the housing crisis and the law school bubble are each textbook examples of market failure.  In each case, a purportedly rational and efficient market was severely distorted by, among other things, poor information, which in turn was largely a product of self-dealing.  Indeed, the analogy between the housing and law school bubbles is in many respects almost eerie, with the U.S. News & World Report “employment percentages” playing the role of Standard & Poor’s and Moody’s bond ratings, which gave sterling investment grades to mortgage derivatives that were in fact certain to default sooner rather than later.¹²

Nor does Silver acknowledge that market failures of this sort are not self-correcting.  In the case of the law school bubble, applications are collapsing in no small part because of a concerted campaign to force law schools to start providing something resembling transparent information regarding initial employment and salary outcomes for graduates.¹³  The publication of Failing Law Schools was an important moment in this campaign.  The book emphasizes that one particularly crucial way in which law schools have failed is that, for many years, potential law students have relied on misleading employment and salary data provided by the schools when deciding whether to enroll.¹⁴

Over the past two years, the law school transparency movement has largely succeeded in making the following information much more accessible to potential law students: (1) At present, ABA-accredited law schools graduate approximately two people for every available legal job; (2) The large majority of such jobs pay $60,000 per year or less—often far less; and (3) Law students are graduating with an average of more than $150,000 in educational debt.¹⁵  These facts, which are central to Tamanaha’s argument that the economics of American legal education are broken, did not become generally known through a perfect storm of market correction but rather via the efforts of a committed cadre of reformers, among whom Tamanaha has been acknowledged as the most important and influential.¹⁶

In short, Silver does not dispute Tamanaha’s diagnosis.  Instead he recommends the budgetary equivalent of a couple of aspirin and some bed rest: Law schools must “tighten their belts, reduc[e] the size of incoming classes, cut[] administrative costs, and forgo[] hiring for a while,”¹⁷ rather than the more aggressive treatments Failing Law Schools advocates.

II. Tenured Faculty and Legal Scholarship

Silver’s objection to Tamanaha’s recommendation that there ought to be more variety among law schools, with some deemphasizing tenured faculty and faculty scholarship and/or offering two-year J.D. programs, is that such changes would harm both legal scholarship and law school pedagogy.¹⁸  According to Silver, these changes would produce inferior lawyers, who in turn would inadvertently harm the interests of those clients who could not afford to purchase legal services from the graduates of traditional law schools.¹⁹

Silver argues that tenure and low teaching loads are necessary for the production of valuable legal scholarship:

This argument makes several assumptions: (1) That the production of valuable critiques of the legal system is a common outcome of the current publication requirements for tenure-track faculty at American law schools; (2) That seriously suboptimal amounts of these valuable critiques of the legal system would be generated by law schools if Tamanaha’s reforms were adopted; and (3) That these valuable critiques of the legal system constitute an important practical counterweight to the invidious effect self-interested actors have on the legal system.

These three assumptions strike me as, respectively, implausible, incredible, and utterly fantastic.  Professor Silver might well reply that they don’t strike him that way and that in his view the scholarship being emitted by American law faculties at an ever-accelerating rate²¹ is in fact “a vital social resource”²²—presumably because such scholarship provides, via some unspecified mechanism, socially efficacious critiques of the nation’s power structure.

Still, under current circumstances the burden of persuasion in such a debate falls on Silver.  After all, Silver does not dispute that legal scholarship has become very expensive to produce and that this expense is having various bad consequences for law graduates.  In other words, legal scholarship produced by tenured faculty at American law schools plays a significant role in driving up the cost of law degrees.  What is not clear is whether those costs are worth incurring.  Simply asserting that the costs are worth incurring because the typical publications of American law faculty provide valuable critiques of the legal system and that these critiques have a beneficial effect on the system’s operation, does not constitute a compelling argument.²³  Further, Silver fails to provide any evidence for the beneficial effect that these critiques have.

Beyond this, Silver sets up and knocks down a rhetorical straw man in the form of the assumption that we need, as of this writing, no less than 201 ABA-accredited law school faculties enjoying both the protections of tenure and the protection of light teaching loads in order to produce the important social benefits generated by the publication requirements at contemporary American law schools.  Tamanaha argues that while some law schools ought to continue in something like their present form, some others should not, given the gains that could be realized from producing somewhat less legal scholarship in exchange for somewhat lower attendance costs.²⁴  Instead of engaging with this modest proposal, Silver conjures up a world  in which all law faculty are untenured and have the high teaching loads that were standard among law faculty a generation ago.²⁵ 

III. Two Tiers of Legal Education and the Socratic Method

Silver then turns from the more general, societal benefits of law review article publication to what he calls “the needs of students and clients.”²⁶  Tamanaha’s suggested reforms would result, Silver says, in a stratified system of legal education with Ritz-Carlton law schools for a favored few and a Motel 6 education for their less privileged peers:

I can only imagine the exasperation that reading something like this would elicit among students at the very large number of law schools where less than one in ten graduates acquire what would be called “Wall Street” jobs, even in the loosest metaphorical sense of that term.²⁸

Few areas of American life are as hierarchically stratified as the legal profession in general and the law school component of it in particular.  We already have, in the legal academic world, Ritz-Carltons and Motel 6s and many exquisitely calibrated gradations in between.  But there is an important difference between hotel and law school pricing: If a room at the real Ritz-Carlton costs $300 per night, a room at the Motel 6 does not cost $270.  That, however, is the pricing structure of law schools.  An unranked law school with terrible employment outcomes often costs nearly as much to attend as its elite neighbor that sends twenty-five times as many graduates to Wall Street law firms.²⁹

Tamanaha’s suggested reforms are based on the unexceptionable idea that something is wrong with a system that allows institutions to get away with charging luxury prices for what could, only with extreme charity, be described as cut-rate outcomes.  After all, someone who buys a night at a Motel 6 actually gets a motel room.  By contrast, at very large numbers of law schools, an actual majority of graduates fail to acquire legal jobs, even liberally defined, within nine months of graduation.  What happens to them beyond that period remains largely unknown.  Silver’s response, like that of some other defenders of the status quo, is that a high-quality legal education is inherently expensive since it cannot be entrusted to nuts-and-bolts-oriented adjuncts or other insufficiently academic faculty.³⁰  “The law professor’s principal task,” Silver writes, “is not to teach would-be attorneys how to fill out forms, or whether to turn left or right in the courthouse to find the Registry of Deeds.”³¹  Rather than limiting ourselves to transmitting mundane practical knowledge, the legal professoriate should be dedicated to a higher calling:

And the best way to teach law students how to think is “the time-honored Socratic and casebook method of legal instruction, administered by professional educators,” which according to Silver “is a snug fit with the pedagogical needs of future attorneys.”³³

As was the case with his unsupported claims regarding the value of legal scholarship, Silver provides no evidence for these assertions.  I have been a law professor twenty-three years, and I confess that I have no idea what those in the academy mean when they claim law professors teach students how to think.  Indeed, while Silver’s claims regarding the practical value of legal scholarship and the pedagogical efficacy of the “time-honored Socratic and casebook method of legal instruction”³⁴ may be wholly unsupported, they are also familiar to the point of banality within the self-contained world of the American law school.

Time and again we hear that law school teaches people—and not just any people but adults who enter law school with at least seventeen years of formal education—how to think.  The words of the fictional Professor Kingsfield are merely a reflection of what was and remains the conventional wisdom about the educational value of law school: “You teach yourselves the law, but I train your minds.  You come in here with a skull full of mush; you leave thinking like a lawyer.”³⁵  This is the sort of thing that would not, in the words of Duncan Kennedy, “stand up for a minute in a discussion between equals.”³⁶  Yet, as Silver’s essay illustrates, legal academics are especially prone to having the kinds of one-way discussions in which the bald assertion of implausible claims masquerades as reasoned argument.

Note too that Silver is so carried away with what he imagines to be the virtues of traditional legal pedagogy that he doesn’t notice the contradiction between his praise of a method focused on supposedly teaching people how to think—as opposed to teaching them to do the things practicing lawyers do—and his criticism of Tamanaha’s (in my view self-evidently correct) claim that “the best way to learn how to practice law is to actually do it.”³⁷  Silver describes this as “no less a prescription for failure with fledgling lawyers than it would be with heart surgeons,”³⁸ even though two paragraphs earlier he derided the idea that a law professor’s job might be to teach lawyers how to do things lawyers do (“fill out forms,” etc.).³⁹  Given his condemnation of learn-by-doing lawyering, it is difficult to understand how Silver can also believe that the Socratic casebook method—which countless critics have pointed out teaches law students nothing about the actual practice of law—is nevertheless “a snug fit with the pedagogical needs of future attorneys.”⁴⁰

I have not touched on the ahistorical character of Silver’s argument.  For example, in the 1970s teaching loads for law faculty were much higher, salaries were much lower, law reviews were publishing approximately one-sixth as many articles as they do now, and not coincidentally tuition at private law schools was a quarter of what it is today in constant dollars, while resident tuition at almost all public law schools was essentially nominal.⁴¹  If Silver is to be believed, this state of affairs should have produced a generation of Motel 6–quality attorneys, while allowing the wielders of power to operate without facing the various trenchant critiques that otherwise would have been appearing in the nation’s law reviews.  Again, does Silver or anyone else have any evidence that either the quality of legal education or the social value of legal scholarship are substantially higher than they were a generation ago?

Conclusion

David Robinson and Harlan Yu are among the foremost scholars in the field of open government data research.  With their 2009 article, Government Data and the Invisible Hand,¹ Robinson, Yu, and their colleagues were among the first in the academic community to offer a well-articulated rationale for the release of governmental data in open formats.

In 2012, Robinson and Yu returned with a new contribution to the field—The New Ambiguity of “Open Government”—providing an analytical framework that evinces the ambiguities underlying the term “open government data.”²  The distinction suggested is a conceptual milestone in the field of open government and data and a welcome addition to a developing body of literature on the subject.

To build on the authors’ contribution, I put forward two arguments.  First, I contend that the authors ignore the enabling conditions under which transparency may lead to accountability.  I suggest that for adaptable data to engender accountability, it must fulfill at least two conditions: the publicity and political agency conditions.  In discussing the agency condition, I also expa­nd on Robinson and Yu’s argument by emphasizing the importance of participatory mechanisms to foster better services and policies.  In this sense, I argue that the authors overlook the role of civic participation as an essential element in unlocking the potential for open data to produce better government decisions and policies.

Finally, I use the analytical backdrop of developed and developing countries in which national governments have recently promoted open data initiatives to conduct an empirical analysis of their publicity and political agency conditions.  By doing so, I broaden the analytical scope adopted by Robinson and Yu—which tends to focus on the United States—while highlighting the challenges associated with open data as a path to accountability.

I. The Conditions for Accountability

A central element of Robinson and Yu’s argument is the notion that while governments may increasingly deliver open data, such initiatives are not necessarily conducive to achieving accountability goals.  Given the ambiguity of the term “open government data,” the authors argue, public sector actors may project a veneer of openness by publishing data that has little or nothing to do with accountability.³

While such an assertion is correct, the authors disregard the possibility that even when publishing adaptable data that could promote public accountabili­ty (as advocated in their essay), actual accountability still might be far from achieved.  Such analytical oversight stems from the absence of a more in-depth examination of the relationship between transparency and accountability, which is revealed by the authors’ nearly interchangeable use of the two terms throughout their essay.  I distinguish these terms below.

Public transparency broadly refers to a concept that encompasses the disclosure of actions taken by public actors and institutions.⁴  While in part a relational concept—one must ask transparent to whom—public actors can still characterize transparency as a unilateral act of disclosure.  Indeed, transparency may be realized without third parties scrutinizing or engaging with the disclosed information.  Accountability, on the other hand, necessarily presupposes a degree of interaction, based on a principal-agent relationship⁵ in which the former holds the latter accountable for its actions in the public realm.

Given these definitions, any accountability mechanism built on disclosure principles requires a minimal chain of events that can be summarized in the following manner: (1) Governmental information is disclosed; (2) The disclosed information reaches its intended public; (3) Members of the public are able to process the disclosed information and react to it; and (4) Public officials respond to the public’s reaction or are sanctioned by the public through institutional means.

This path toward accountability highlights the limits of transparency.  Even in the most simplified model of accountability, transparency accounts for no more than one fourth of the process.  Building on previous research on the subject,⁶ I argue that at least two conditions—the publicity and political agency conditions—must be fulfilled for politically important adaptable data to engender true accountability.

A. The Publicity Condition

Defining accountability as a principal-agent relationship implies that citizens’ capacity to hold public officials accountable depends in part on the amount and quality of information at their disposal.  An extensive body of literature on the sources of accountability thus underscores the importance of citizens’ knowledge of public actions,⁷ demonstrating that transparency can enable accountability only when the publicity condition is fulfilled.⁸  Scholars define this condition as the extent to which disclosed information actually reaches and resonates with its intended audiences.⁹  Two implications emerge from this requirement.

First, for adaptable data to reach the public, it must be widely accessible.  Even if opening data lowers the barriers for third parties to access and reuse it, the capacity to process data in machine-readable formats depends on a specific set of technical skills¹⁰ and resources that are hardly accessible to most citizens.  While it is important to acknowledge that “data is not just for developers,”¹¹ most citizens depend on technically skilled and resourced individuals and organizations to mediate their access to adaptable data.¹²  By its very nature, the provision of adaptable data cannot be automatically equated with transparency.  Ironically, in many cases, adaptable data only realizes transparency goals when techno-mediators¹³ process it for general public consumption.

Assuming the presence of the technological capacity to process politically important data, the existence of a vigorous free press (and internet) constitutes the second requirement for adaptable data to fulfill the publicity condition.¹⁴  From this perspective, free press is conceived as a vehicle that de facto renders public the disclosed information,¹⁵ thereby reducing the information asymmetry between citizens and governments.  Similarly, the press serves as both a mechanism for external control of governmental action and a platform for citizens to voice their concerns.¹⁶

If the evidence demonstrates that free press is more likely to engender accountability,¹⁷ then adaptable data is more likely to enter the accountability equation to the extent that media actors routinely convey it to the public.  Otherwise, politically important data remains unknown to the public, undermining its potential to generate any accountability.¹⁸

Hypothetically, a number of actors, such as civil society organizations, social movements, academics, engaged individuals, and even search engines could still enable the publicity condition in the absence of a free press.  Nonetheless, the potential for this mediation to take place is a function of the political freedoms and civil rights in place.  Unfortunately, more often than not, press freedom goes hand in hand with fundamental rights and freedoms.  In contexts of limited press freedom, the potential for third parties to play a role in fostering the publicity condition is also seriously constrained.¹⁹

B. The Political Agency Condition

In addition to the publicity condition, mechanisms through which citizens can sanction or reward public officials must be in place to satisfy the political agency condition.²⁰  Otherwise, in the absence of such a system, public officials have little incentive to be responsive and accountable to citizens’ concerns, and transparency is all the less meaningful.²¹

From this perspective, the absence of free, fair, and periodic elections emerges as a clear constraint on transparency’s capacity to enable accountability.  A grow­ing body of empirical research supports this claim, highlighting the limitations and even adverse effects of transparency in nondemocratic systems.²²  In other words, even when disclosed, politically important data may stand little chance of furthering accountability goals in the context of flawed democracies or authoritarian regimes.

Although a well-established electoral system may enable transparency-based accountability, it does not guarantee it.²³  As prominent democracy scholar Larry Diamond eloquently summarizes, civic participation must go beyond the electoral cycle:

Robinson and Yu thus neglect a major element that enables transparency to foster accountability—the need for participatory (electoral and nonelectoral) mechanisms.  It is the combination of (publicized) transparency and institutions that promote governmental responsiveness and empower citizens to partake in public decisionmaking that leads to substantive accountability.

As Jeremy Bentham asserted two centuries ago,²⁵ “[I]n the same proportion as it is desirable for the governed to know the conduct of their governors, is it also important for the governors to know the real wishes of the governed.”²⁶  Bentham’s historic call for participation resonates with contemporary research demonstrating that in the absence of effective mechanisms for citizen participation beyond elections, transparency is unlikely to produce the expected results put forward by its advocates.²⁷

If, as put by Beth Noveck, “the ability of third parties to participate is what makes open data truly transformative,”²⁸ the existence of participatory institutions enables third parties to participate effectively.  But unfortunately, to date, mechanisms of participation related to open data largely have been limited to ad hoc events in which technologists and interested parties collaborate on software-related projects (such as hackathons and competitions).  These mechanisms may well prove to be effective in exploiting the expertise of third parties through the development of technologies and solutions that may serve public purposes.  They do not, however, replace participatory institutions²⁹ designed to leverage the dispersed knowledge of citizens to shape decisions that affect their lives.  In the absence of these institutions that enable political agency, adaptable data is toothless.

II. Examining the Publicity and Political Agency Conditions Beyond the U.S.

As the open data movement is internationalized and propelled through multilateral efforts and donors alike,³⁰ it becomes even more important to reflect on the meaning of adaptable data in an international context.  Such an exercise, beyond widening Robinson and Yu’s analytical scope, highlights the challenges associated with open data as a vector for accountability.

Concerning the publicity condition, a first threshold requirement refers to the presence or absence of technical capabilities to process adaptable data to render it accessible to the broader public.  Generally, there are a number of cases in which such techno-mediation has proven to be successful.  For instance, previous research on the use of government data by third parties during the economic downturn³¹ has shown a number of cases in which nongovernmental actors were able to provide information on recovery measures more efficiently than governments themselves.³²

But the need of such techno-mediation to make adaptable data accessible to the general public raises questions particularly in the context of developing countries, where technical capabilities to process and extract meaning from open data may be either scarce or undermobilized for civic purposes.³³  In such contexts, one could hypothesize that the disclosure of government data—politically relevant or not—may well constitute an excellent artifice for governments to remain opaque while taking credit for championing transparency.

But even if we assume that the technical capacity to process data is in place, it remains only one part of the publicity equation.  As discussed earlier in this Essay, in addition to the technical capacity to process adaptable data, the extent of press freedom in any given context remains crucial for determining the potential for transparency to produce accountability.  For illustrative purposes, I conduct an empirical exercise to verify the state of press freedom in developed and developing countries that have recently launched open data websites.³⁴

The results of this exercise are illustrated in Table 1 below.³⁵

Table 1.  Press Freedom in Open Data Countries

As the table above illustrates, the analysis of press freedom in countries with open data portals presents mixed results.³⁶  While a considerable number of countries (57 percent) that have recently launched government-run open data portals have a free press, this is not the case for nearly half (43 percent) of the remaining countries, where the press is considered not free or only partially free.

In the countries with press freedom, Robinson and Yu’s argument seems to suggest that politically important adaptable data may potentially foster accountability.³⁷  Nevertheless, in countries where press freedom is nonexistent or only partial, the interpretation of the results is not as straightforward.  This highlights one of the limits of Robinson and Yu’s argument.

Countries without a free press might release uncontroversial data with little potential to enable accountability.³⁸  In that case, press freedom is irrelevant because politically important data is not released in the first place.  A second hypothesis, however, based on the publicity condition, is equally disturbing: Even for cases in which governments disclose politically important data (as Robinson and Yu advocate), there is little chance that the data and, more importantly, the respective interpretations that follow, will freely circulate within the public sphere.  Finally, a third—and skeptics would argue a less likely—hypothesis is also possible: Despite the adverse context in which these initiatives take place, such a fact reveals a positive move toward increased transparency and accountability. I discuss the implications of these different hypotheses in more depth below.

I conduct a similar exercise to examine the implications of the political agency condition.  As a proxy for the ability of citizens to express their preferences about policies and to decide whether to sanction or reward their leaders, I look at the state of civil liberties and political rights for the year of 2013 in each of the countries reviewed in Table 1.³⁹  I present the results in Table 2 below.

Table 2.  Civil Liberties and Political Rights in Open Data Countries

Once again, interpreting these results is far from simple.  On the one hand, given research on the importance of the political agency condition, the prospects for any open data, regardless of its political importance, to advance accountability in some these countries appears grim.  Indeed, without fulfilling even the minimal political agency requirements of civil liberties and political rights, there is little hope that adaptable data will foster accountability.  On the other hand, however, the very existence of open data initiatives in these adverse environments may indicate a push toward greater openness, even in regimes in which accountability appears unlikely to occur.

These competing interpretations of the above analyses—that open data initiatives are likely to fail or represent the first step toward increased transparency—are not mutually exclusive, however.  Indeed, the answer is more likely to fall somewhere along the continuum between these two.  After all, a single policy is often designed and implemented by actors pursuing multiple goals intended to produce different effects.⁴⁰ Thus, while these policies may represent government officials’ opportunistic pretense for accountability, they may also be supported by democratically minded reformers who view open data—and the current enthusiasm around it—as an opportunity to advocate for greater accountability re­forms.  The dismissal of these initiatives as examples of authoritarian man­ipulation therefore risks undermining reformers’ efforts for change.

Yet, a strong hypothesis remains: Holding all other factors constant, open data’s potential to foster accountability is proportional to the extent to which the publicity and political agency conditions are in place.

Conclusion

Open government data, often equated with transparency by its advocates, emerges as the new low-hanging fruit of good governance.  Yu and Robinson bring substance to such a debate, highlighting the importance of the nature of data to be disclosed for accountability to be generated.

Nevertheless, the nature of the data is as relevant as the context in which this data is disclosed.  In the absence of a free press, open data stands little chance of entering the public arena to foster accountability.  In a similar vein, in the absence of an environment that enables citizens to hold rulers accountable, express preferences, and influence policy, little can be achieved.

As a whole, this analysis advises caution on the part of policymakers and advocates with regard to the potential of open data to foster accountability.  Even when data is politically important, accounting for the publicity and political agency conditions might be a commendable reflection for a better understanding of the prospects and limits of open data.

In 1999, the Vermont Supreme Court held that denying the rights and benefits of marriage to same-sex couples violated the Vermont Constitution,¹ and the legislature enacted civil unions the next year.²  Lesbian, gay, bisexual, and transgender (LGBT) rights advocates celebrated.  The American Civil Liberties Union (ACLU) lauded Vermont as the “first state to require complete equality for same-sex relationships.”³  Matt Coles, then director of the ACLU’s national Lesbian and Gay Rights Project, explained the decision’s significance: “The court says that in Vermont at least, lesbian and gay couples should get the same treat­ment the law gives to heterosexual couples.  Whether you call that same-sex mar­riage, domestic partnership or something else, it is full equality, and that is an historic first.”⁴  Responding to the civil union law, Kate Kendell, executive direc­tor of the National Center for Lesbian Rights (NCLR), declared, “This historic piece of legislation marks the first time a state has accorded to lesbian and gay couples the full equality and protection we deserve and have long been denied.  This . . . hopefully mark[s] the beginning of a national effort to secure equality in the rest of the country.”⁵  Advocates framed civil unions, which provided same-sex couples with the state-based rights and benefits of marriage, as a measure that delivered equality.

Fast forward to 2006.  The New Jersey Supreme Court followed the course set by Vermont’s high court,⁶ and the state legislature subsequently enacted legislation permitting civil unions.⁷  This time, LGBT rights advocates protested.  David Buckel, who litigated the New Jersey case for Lambda Legal, wrote that “for the government to use the label ‘civil union’ is a considered choice of language that assigns us a second-class status.”⁸  Resisting the implication that Lambda Legal might “oppose[] civil unions in all instances,” Buckel explained: “Whatever the calculus that defines the best strategy for an individual state, our role is not only to help get to success—big or little, now or later—but also to ensure that everyone knows it isn’t over until same-sex couples can choose freely from the same range of options as different-sex couples.”⁹  Advocates located the civil union law as a mere stop along the way to full equality.  Indeed, they framed the law as an equality violation in itself.

What changed?  How had civil unions shifted from a sign of equality to a marker of inequality?  In this Essay, I show how LGBT rights advocates’ deploy­ment of constitutional frames, and the articulation and resolution of those frames in court, played a significant role in this shift.  The constitutionalization of relationship recognition and the turn to courts facilitated—and ultimately required—the move from equality to inequality in framing civil unions and domestic part­nerships.¹⁰  Once advocates were able to show the shortcomings of civil unions and domestic partnerships—that those regimes failed to satisfy equality mandates issued by courts—they could shift the frame from equality to inequality.  By attending to these dynamics, we can see how the remedy for the Vermont Supreme Court’s equality mandate eventually became the injury of ine­qual­­­ity that other courts and legislatures have recognized.¹¹

To chart this transformation, this Essay focuses on four points along the path to marriage equality:

Constitutional commitments provided the language through which LGBT rights advocates framed civil unions, domestic partnerships, and marriage, both in and out of court.¹⁹  The very meaning of equality changed through social movement mobilization, movement–countermovement conflict, and state deci­sionmaking processes.²⁰  Courts played a significant role in this development, furnishing locations in which advocates could announce, hone, and resolve frames²¹ and attract attention to and publicity for those frames.²²  Advocates, in turn, would integrate courts’ assessments of those frames—in the form of ad­judicated results—into their discursive strategies.²³  Ultimately, the con­sti­tutional, court-based fight over the meaning of equality for same-sex couples both reflected and constituted the political and cultural dimensions of that fight.²⁴

I. Vermont—Civil Unions and Equality

In Vermont, in the late 1990s, LGBT rights lawyers argued that the Vermont Constitution’s Common Benefits Clause required that same-sex couples receive the same rights and benefits as married different-sex couples.²⁵  Advocates had turned to courts instead of attempting to secure relationship rec­ognition through the legislature.  At this early point in the LGBT movement’s organized campaign for marriage equality, courts provided the only state-level venues for plausibly making claims to marriage.²⁶  A few state legislatures grap­pled with limited relationship recognition in the 1990s, but marriage was generally not on the table.²⁷

The court in Baker v. State decided that the provision of equivalent rights and benefits to same-sex couples could remedy the constitutional violation in the case, in spite of the plaintiffs’ request that the state allow same-sex couples to marry.²⁸  The court stated: “While many have noted the symbolic or spiritual significance of the marital relation, it is plaintiffs’ claim to the secular benefits and protections of a singularly human relationship that, in our view, characterizes this case.”²⁹  This followed logically, though not inevitably, from the “common ben­efits” framing of the case by LGBT rights lawyers.  Even though the Vermont Common Benefits Clause resembles the federal Equal Protection Clause, its unique common benefits language was particularly favorable for framing same-sex couples’ claim and stressing their exclusion from a vast array of benefits granted to married different-sex couples.³⁰

The plaintiffs’ reliance on the common benefits framing suggested less attention to marriage’s social implications.  Their opening brief, for instance, focused heavily on the “broad panoply of legal, economic and social protections and supports for married couples and their families,”³¹ while devoting only a single sentence to the “social value of state-recognized civil marriage.”³²  Indeed, the plaintiffs disputed the state’s characterization of the case as “not ‘a benefits case’”: “[C]ivil marriage opens the door to hundreds of legal protections, sup­ports, and obligations, the vast majority of which are simply out of reach for Appellants because they cannot marry.”³³  Of course, the plaintiffs acknowledged Baker was “not just a benefits case,” because “[t]hrough civil marriage, the State confers a status, which plugs into a common social vocabulary and carries power­ful personal and cultural weight.”³⁴

The court, drawing on the common benefits framing advocates presented, focused on marriage’s material rights and benefits, rather than its cultural status:

In response, the state legislature enacted civil unions, the country’s first comprehensive relationship recognition law for same-sex couples.³⁶  In this fram­ing, equality was understood primarily as material equality rather than dignitary equality.

The Vermont Supreme Court credited the LGBT rights lawyers’ frame in a carefully circumscribed way by focusing on tangible rights and benefits over equal respect and status.  With the court’s ruling, advocates had a judicially endorsed frame on which to draw.  They had a choice: They could either appeal to Chief Justice Johnson’s concurring and dissenting opinion, which criticized the ma­jority for falling short of full marriage rights for same-sex couples,³⁷ or praise the majority opinion and frame the decision as a progressive call for equality.³⁸  For the most part, advocates chose the latter, adopting the majority’s equality frame and using it to drive the movement in other states and on the national level.³⁹  There was power in claiming victory, both to mobilize constituents and to con­vince elites to support the movement.  And embracing civil unions as a remedy could lead to similar victories in other states, including those that had statutes or constitutional amendments banning recognition of marriage for same-sex cou­ples.  For instance, soon after the Vermont legislature’s move, Representative Paul Koretz introduced a civil unions bill in California.⁴⁰  While advocates and lawmakers abandoned the bill when they determined that it would be easier to build on the state’s existing domestic partnership statute, the result in Vermont influenced the move toward a comprehensive domestic partnership regime in California.⁴¹

Although LGBT rights lawyers publicly adopted the civil union equality frame,⁴² they anticipated that they would later deploy the inequality frame and be­gan to collect evidence of discrimination against same-sex couples in civil unions.⁴³  As the concept of marriage equality gained traction, movement ad­vocates would begin to paint civil unions as an inadequate remedy.  But with relatively low levels of public support for marriage equality, they embraced civil unions as a temporary solution.⁴⁴  In other words, advocates did not adopt the Vermont court’s frame in an unthinking, wholesale fashion.

II. Massachusetts—Marriage Equality

A key lawyer in the Vermont litigation, Mary Bonauto of Gay & Lesbian Advocates & Defenders (GLAD), subsequently pursued marriage equality in Massachusetts.  In its 2003 decision in Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court held that the state constitution re­quired that same-sex couples receive the same treatment as different-sex couples with regard to marriage.⁴⁵  Massachusetts lawmakers asked the court if the state could remedy the constitutional violation by enacting civil unions, as Vermont did.⁴⁶  This offered an opportunity for Bonauto and her colleagues to frame the Vermont experience as one that produced inequality and continued discrim­ination.⁴⁷  Distinguishing Baker’s focus on “equal access to state-conferred marital rights and responsibilities,”⁴⁸ Bonauto emphasized Goodridge’s attention to the “unique status” of marriage, which “legally and socially confirms and strengthens the private commitment of the couple.”⁴⁹  While the abstract idea of relationship equality in Vermont was commendable, Bonauto claimed that because of the so­cial and cultural significance of marriage and the unfamiliar status of civil unions, a nonmarital designation could not provide equal treatment in practice.  Private parties, for instance, would continue to discriminate against same-sex couples.⁵⁰  Because the Vermont resolution did not deliver the constitutional equality it guar­anteed, advocates in Massachusetts painted it as an inadequate remedy.

In response to the state lawmakers’ question asking whether civil unions would suffice, the Massachusetts Supreme Judicial Court answered with a re­sounding no, explaining that only full marriage equality would remedy the con­stitutional violation.⁵¹  The decision signaled that civil unions were becoming a sign of inequality.⁵²  The court itself functioned as a framing agent, validating the marriage equality and civil union inequality frames and reshaping those frames going forward.⁵³

Yet the court’s favorable ruling did not authoritatively end the debate.  Rather, the court provided resources for LGBT activists to continue to push their constitutional vision in Massachusetts and beyond.⁵⁴  The judicial decisions in Massachusetts changed the terms of the political debate in that state.⁵⁵  Ad­vocates could now portray legislators opposed to marriage equality as attempting to eliminate recognized constitutional rights.⁵⁶  On the other side, sympathetic lawmakers could now rely on state supreme court decisions to articulate their support and, as a practical political matter, couch their position.⁵⁷  The court’s intervention in Goodridge contributed to the framing of the marriage equality issue, rendering nonmarital recognition a second-class alternative and justifying the political ratification of marriage equality.

III. New Jersey—Civil Unions and Inequality

In 2002, LGBT rights advocates led by Lambda Legal challenged same-sex couples’ exclusion from marriage in New Jersey.⁵⁸  At the New Jersey Supreme Court, the lawyers portrayed civil unions and domestic partnerships as unac­ceptable alternatives.⁵⁹  Yet in its 2006 decision in Lewis v. Harris, the ma­jority ruled that civil unions could remedy the constitutional violation; for its part, the dissent argued that only full inclusion in marriage would suffice.⁶⁰  In response to the court’s decision, the legislature passed a civil union law.⁶¹  Ad­vocates recog­nized the material benefits produced by the court’s decision and the subsequent codification of civil unions, but nonetheless attacked the result, ar­guing that the court and the legislature failed to provide full equality.

In the years following Lewis, advocates aggressively pursued the inequality framing of civil unions.  Lambda Legal lawyers challenged the United Parcel Service’s refusal to recognize civil unions for employee benefits purposes.⁶²  And they documented discrimination experienced by same-sex couples in civil unions,⁶³ publicizing numerous instances of third-party discrimination.⁶⁴  These examples bolstered the inequality frame now used for civil unions and discredited the equality frame that previously characterized nonmarital recognition.  The efforts to document discrimination against those in civil unions, which merged con­siderations of symbolic or cultural equality with considerations of tangible or material equality, showed that the status-based harm inherent in a separate nonmarital designation produced material harms for same-sex couples and their families.  The New Jersey Supreme Court’s decision did not authoritatively settle the debate in that state.  Advocates continue to push for marriage legislatively,⁶⁵ and Lambda Legal returned to the New Jersey courts in 2011, arguing that civil unions violate both state and federal equal protection guarantees.⁶⁶

IV. California—Litigating Inequality

LGBT rights advocates eventually asserted more aggressive legal claims against civil unions and domestic partnerships.  Lawyers argued that regimes once perceived as remedying constitutional violations actually constituted violations themselves.  In a key decision, the California Supreme Court credited this inequality frame, ruling that the domestic partnership regime failed to satisfy the demands of the state equal protection guarantee and ordering the state to open marriage to same-sex couples.⁶⁷

The inequality frame had gained resonance during the state’s move toward a comprehensive domestic partnership law, which took effect in 2005.  Although this Essay has thus far focused on advocates’ strategies and the relationship those strategies have to court decisions, the strategies of opponents of relationship recognition in California also contributed to the shift toward inequality frames.  Movement–countermovement dynamics influence frames as each movement responds to and internalizes frames advanced by the other.⁶⁸  At the same time that LGBT rights advocates were pushing relationship recognition, including both marital and nonmarital regimes, Christian Right activists pressed for stat­utes and constitutional amendments banning marriage for same-sex couples and, in some instances, nonmarital recognition.  These activists also challenged nonmarital regimes as violative of state laws prohibiting recognition of marriage for same-sex couples.  In California, LGBT rights advocates defended the state’s comprehensive domestic partnership law against a challenge that the law contra­vened Proposition 22, the voter initiative prohibiting marriage for same-sex couples.  Initiative proponents argued that the domestic partnership regime was so similar to marriage that it violated the spirit of the statute, while LGBT rights lawyers underscored the differences between the two relationship statuses.⁶⁹  In this sense, the countermovement’s turn to courts necessitated arguments by LGBT rights lawyers denigrating nonmarital relationship recognition and dis­tancing it from marriage.  The countermovement strategy, therefore, actually aided the LGBT rights movement’s shift from equality to inequality frames around civil unions and domestic partnerships.  In determining that the com­prehensive domestic partnership regime did not violate Proposition 22, the California Court of Appeals deemed domestic partnership a distinct and inferior status.⁷⁰  In this way, the landmark victory in the California legislature—the pas­sage of a comprehensive domestic partnership law—was reframed in court as a mark of inequality.

Three years after the state court resolution of the domestic partnership dis­pute and mere months after the California Supreme Court announced same-sex couples’ right to marry under the state constitution, Proposition 8 amended the California Constitution’s Equal Protection Clause to exclude same-sex couples from marriage (yet leave untouched the comprehensive domestic partnership re­gime).  Same-sex couples filed suit in federal court in a case led by a new organ­ization, the American Foundation for Equal Rights (AFER).⁷¹  Indeed, the main LGBT movement organizations had warned against such litigation.⁷²  In Perry v. Schwarzenegger, AFER’s lawyers, most notably Ted Olson and David Boies, ar­gued that the state constitutional amendment violated federal equal protection guar­antees and deprived lesbians and gay men of their fundamental right to marry.⁷³

Judge Vaughn Walker held a trial in which the parties explored and scru­tinized the distinction between comprehensive domestic partnership and mar­riage.  The lawyers, the same-sex couple plaintiffs, and the expert witnesses pointed to both the material and the dignitary harm that domestic partnerships inflict and framed the domestic partnership regime as unequal as a constitutional matter.⁷⁴  Embracing marriage as a constitutional requirement in effect meant denigrating civil unions and domestic partnerships.  The lawyers put on experts who connect­ed the constitutional frames of equality and inequality to empirical arguments about harm.⁷⁵  Crucially, these experts carefully reframed domestic partnership as harmful by distinguishing the earlier, more equality-driven frames.

Social epidemiologist Dr. Ilan Meyer testified that the exclusion of same-sex couples from marriage and the designation of same-sex relationships as separate domestic partnerships produced emotional and psychological harm that leads to what he termed “minority stress.”⁷⁶  In discussing the difference between marriage and domestic partnership—as opposed to the difference between mar­riage and no relationship recognition—Meyer explained that “you’re actually making a clearer statement of stigmatization when you have this dual system, because it is not only that you’re denying them the marriage, you’re also saying this marriage is highly valued and, therefore, you cannot get that part so we’re giving you something that we’re calling something else.”⁷⁷

Under cross-examination, Meyer negotiated the relationship between the equality and inequality frames of domestic partnership:

The examining attorney then showed Meyer California’s comprehensive domestic partnership law:

At the Perry trial, the expert witnesses put forward public policy arguments, grounded in empirical research, as to why and how domestic partnership harmed same-sex couples.⁸⁰  Ultimately, the trial allowed supporters of marriage for same-sex couples to construct the meanings of equality and inequality in specific and empirical terms.  Doing so, however, required delicately balancing the push for marriage in California with the movement’s earlier endorsement of a domestic partnership regime in that state and the continued selective endorsement of do­mestic partnership laws in other states.

By crediting the LGBT rights movement’s frames and discrediting the coun­t­er­movement’s frames, the district court itself shaped the conversation around marriage for same-sex couples.  Judge Walker endorsed the marriage equality frame and the domestic partnership inequality frame by relying on an array of expert and plaintiff testimony.⁸¹  He then linked that testimony to constitutional principles of liberty and equality.⁸²  The court’s reasoning provided a resource for movement activists moving forward and became part of the public and legislative debate over same-sex relationship recognition.

A divided Ninth Circuit panel affirmed the district court’s holding but did so on narrow grounds that relied heavily on the distinction between marital and nonmarital relationship recognition for same-sex couples.⁸³  Lawyers at LGBT legal organizations, lawyers for the City and County of San Francisco, and prom­inent constitutional law scholars led by William Eskridge forcefully argued that the unique situation in California—in which same-sex couples have a domestic partnership system and had the right to marry eliminated by voters—could not withstand even rational basis review.⁸⁴  Following that logic, the Ninth Circuit panel made the domestic partnership regime central to its holding and found that “the difference between the designation of ‘marriage’ and the designation of ‘domestic partnership’ is meaningful.”⁸⁵  Instead of signifying equality for same-sex couples, the domestic partnership law signified the denial of the designation of marriage, which the court understood as “the principal manner in which the State attaches respect and dignity to the highest form of a committed rela­tionship.”⁸⁶  After Perry, the transformation from equality to inequality for nonmar­­ital relationship recognition, through both advocates’ frames and courts’ acceptance of those frames, seems nearly complete.

Conclusion

Now, more than ten years after Vermont resorted to nonmarital rela­tionship recognition to provide constitutional equality to same-sex couples, LGBT rights advocates frame civil unions and domestic partnerships, both legally and polit­ically, as unequal.  And they frame marriage as the only true mark of equality.  Advocates pursue these frames in courts and legislatures throughout the country,⁸⁷ drawing explicitly on constitutional frames.

The U.S. Supreme Court is poised to weigh in on marriage equality, spe­cifically against the backdrop of a comprehensive domestic partnership law.  It grant­ed certiorari in Perry and may rule on whether California’s domestic part­nership regime meets the demands of the Equal Protection Clause of the Fourteenth Amendment or instead directly contravenes that equality mandate.⁸⁸  If the Supreme Court rules on the question of whether comprehensive nonmarital rela­tionship recognition violates the constitutional guarantee of equality, it will have done so after many judicial decisions and years of political and cultural debate shaped by the shrewd framing efforts of LGBT rights advocates.

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.