Introduction

The Supreme Court’s upcoming term has the potential to radically transform the family rights of same-sex couples.  An unprecedented six cases re­lating to same-sex marriage rights are currently pending certiorari review.¹  If—as is widely expected—the Court takes up one or more of these cases, it will inject itself for the first time into the marriage rights debates that have captured na­tional at­tention since the early 1990s.  Although the Court could (and most likely will) resolve each of the pending cases without deciding whether state prohibi­tions on same-sex marriage are categorically unconstitutional, any pronouncement it makes will set the trajectory for future litigation and determine the near-term fate of the marriage rights movement.

The import of this term’s pending marriage cases also, however, extends far beyond the lesbian, gay, and bisexual (LGB) rights movement or its marriage aims.  In recent years, a number of scholars, including prominently Kenji Yoshino, have argued that we are at “the end of equality doctrine as we have known it”—that we are, in effect, in a post–equal protection era.²  In this new era, the liberty pro­tections of the Due Process Clause have superseded equality as the primary engine of constitutional change for subordinated groups.³  Normatively, Yoshino suggests that this “new equal protection” may be a good thing, insofar as it universalizes claims for rights and assuages the balkanizing effects of identity politics.⁴  Pre­scriptively, Yoshino suggests that subordinated groups should frame their claims in liberty- rather than equality-based terms in cases in which both alternatives are availa­ble to them.⁵

The marriage claims pending at the Court put these empirical and normative assertions to the test.  Doctrinally, LGB marriage claims are quintessential ex­am­ples of the type of dual-possibility claims that Yoshino envisions: There are doc­trinally respectable arguments to be made for marriage equality under both the Equal Protection and Due Process clauses.⁶  And yet, as they have come up to the Court, only one of the six pending cases places any significant emphasis on due process (i.e., liberty-based) claims.⁷  Instead, the arguments pending before the Court overwhelmingly focus on strictly equal protection–based arguments: that classifications targeting lesbians and gay men should be afforded heightened scrutiny, or that, alternatively, the restrictions at issue are so lacking in justification as to fail rational basis review.⁸

What does this mean for Yoshino’s “new equal protection”?  Until the Court takes up and decides one or more of the pending cases, it is impossible to know.  A rejection of LGB litigants’ equal protection claims would validate Yoshino’s con­tention that there is little possibility of new groups securing robust equal protection rights and retrospectively suggest the correctness of Yoshino’s prescriptive recom­men­da­tions.  Alternatively, a favorable equal protection ruling—and particularly one validating heightened scrutiny for sexual orientation–based distinctions—would profoundly upend the perspective Yoshino has articulated in his recent work.

As set out below, I think the second result is most likely.  For while there are robust reasons to believe—as Yoshino claims—that the Court has turned at least partially away from equality claims, there is an alternative story to be told: that no identity-based social movement (IBSM)⁹ has achieved the type of societal transfor­mation required for full equal protection inclusion in recent decades.¹⁰  In the case of the LGB rights movement, there are strong signs that the movement has finally “arrived,”¹¹ rendering it plausible for the first time that the Court may extend full equal protection coverage.¹²  Moreover, there are reasons to believe that Yoshino’s suggested focus (on liberty arguments) might actually be counterpro­duc­tive for groups that have reached this equal protection tipping point.  In short, the marriage cases provide a unique proving ground for the “new equal protection” and its underlying prescriptive aims.

I.          Social Movements and the “Old” Equal Protection

Yoshino’s work on constitutional equality tells a discouraging story regarding contemporary prospects for traditional equal protection claims.  The Court, Yoshino suggests, is weary of identity politics and anxious about the proliferation of groups seeking protections.¹³  As a result, the Court has turned away from equal protection, declining to recognize new groups for protection and placing limits on existing equal protection doctrine.¹⁴  Collectively, he contends that these develop­ments mark the end of traditional equal protection doctrine: We are at “the end of equality doctrine as we have known it.”¹⁵  More optimistically, he makes the case that this does not mean the end of protections for subordinated groups.  Rather, the Court’s commitment to civil rights has reappeared in the form of an enhanced solic­itude for liberty-based claims.¹⁶  

Parts of this story are difficult to take issue with.  There is no doubt that the country (and the Court with it) has soured on identity politics¹⁷, and that the Court, as an institution, has become more reluctant to embrace new equal protection rights.¹⁸  Moreover, there is little reason to doubt that pluralism anxiety has played a role in this turn (although here Yoshino’s exclusive focus seems overstated).¹⁹  And Yoshino’s fundamental empirical observation—that contemporary social movements have failed to secure full equal protection coverage—is indisputable.²⁰

But in the case of the LGB rights movement—the social movement that forms the primary inspiration for much of Yoshino’s work—there is an equally plau­sible story to be told about the Court’s doctrinal approach.  As Bill Eskridge has documented, for many social movements, initial efforts to harness constitu­tional law by necessity take the form of a “politics of protection”—that is, claims to protect the “life, liberty, and property” of their members.²¹  And in this initial stage, the Due Process Clause and the First Amendment take center stage, as the courts—while still unwilling to sanction full equality—are discomforted by the re­pressive actions of the state.²²  It is only in the later stages of social movement development—once the group has gained widespread acceptance as “benign” or at least “tolerable” variation—that robust equal protection coverage becomes plausible.²³

Seen in these terms, Lawrence v. Texas²⁴ (Yoshino’s Exhibit A for the Court’s turn toward liberty-based claims) takes on a different cast.²⁵  Lawrence is, of course, a core “politics of protection” case, contesting the state’s right to effectively crimi­nal­ize a subordinated status.²⁶  And while Lawrence—as Yoshino argues and as the Court acknowledges—could also have been cast in equal protection terms, there are strong reasons to believe that social norms regarding sexual orientation had not evolved sufficiently to support full equal protection recognition by the Court at that time.²⁷  In Eskridgean terms, Lawrence marked the transition from a jurisprudence of repression to a “jurisprudence of tolerance.”²⁸  It did not mark the more radical transition to a jurisprudence of recognition.

Today, the social backdrop looks very different.  While only 39 percent of Americans supported same-sex marriage rights at the time that Lawrence was decided,²⁹ today a majority of Americans do.³⁰  And an overwhelming majority of con­tem­porary Americans—close to 90 percent—support workplace rights for LGB Americans.³¹  Perhaps most strikingly, in the last two years the executive branch of the federal government has come out definitively in support of LGB equality, taking the position that heightened scrutiny is warranted for classifica­tions that target lesbians and gay men, and (at least tentatively) supporting gay marriage equality.³²  Collectively, these developments suggest a major transfor­mation in the minds of a majority of Americans regarding the social meaning of LGB status.

There are increasing signs that—precisely as Eskridge’s model suggests—this social transformation is permitting new doctrinal windows of possibility.  After many decades of declining to apply heightened scrutiny to government actions targeting lesbians and gay men, lower courts have in the most recent decade increas­ingly found heightened scrutiny to be warranted.³³  And, even in cases in which the courts have declined to apply heightened scrutiny, they have typically found anti-LGB discrimination to be irrational.³⁴  In short, there are increasing rea­sons to believe that the LGB movement has arrived—or is approaching that point—under the “old” equal protection.

The marriage equality movement is arguably emblematic of these changing tides.  After decades of bringing cases only under state constitutional law, marriage equality litigants have increasingly brought—and prevailed on—federal equal pro­tec­tion claims.³⁵  Indeed, each of the six cases before the Court this term seeks review of an equal protection victory for lesbian and gay couples in the lower courts, a turn of events that a decade ago would have been unthinkable.³⁶  Thus, even in the domain of marriage—the area in which the public has been most resistant to claims of LGB moral equivalency—the last several years have marked a time of profound doctrinal transformation and of increased equal protection possibilities.

If the Court takes up any of the pending marriage cases, this optimistic forecast will be put to the test.  A failure on equal protection grounds in the Court would pose an enormous setback for the LGB rights movement and would no doubt halt the growing momentum toward successful equality claims in the lower courts.  And success—whether based on rational basis or heightened scrutiny—would have equally profound implications for future equality-based claims.³⁷

LGB rights litigants—who have joined their opponents in urging the Court to grant review—are betting on the latter outcome.³⁸  And if they are right, the “old” equal protection may have some life yet.  

II.       On the Dangers of Liberty

But of course Yoshino’s claim—that we have turned away from equal protec­tion and toward liberty—is not only empirical.  He also (albeit more weakly) makes the normative argument that a turn away from equal protection and toward due process arguments is desirable.³⁹  Thus, Yoshino frames the Due Process Clause not as a claim of last resort but instead as the claim of choice in cases in which both equality and liberty claims are possible.⁴⁰  Undergirding this nor­ma­tive preference is Yoshino’s belief that liberty claims—with their universal application—will do a better job of garnering wide support and of avoiding the po­lar­izing effects of identity politics.⁴¹

Again, it is hard to take issue with certain elements of this account.  There is no doubt that the zero-sum perception of identity politics has weakened political support for subordinated groups’ legal and political claims.⁴²  And, as Yoshino al­ludes to, political scientists have long shown that crosscutting and inclusive policies tend to remain the most robust over time.⁴³  Moreover, there are reasons to believe that after a group has secured formal equality protections, extra-discrimination remedies (claims not framed as classic discrimination claims) may become increas­ingly important as explicit discrimination declines.⁴⁴

But there are also reasons to believe that an excessive focus on due process and its liberty- or choice-based rubric may be dangerous for groups that are, like the LGB rights movement, on the cusp of achieving equality-based protections.  Since Lawrence, the basic liberty-based argument that has been made for LGB equality has been as follows: (1) Lawrence recognized a constitutionally protected right for LGB individuals to choose a same-sex intimate partner; and (2) gov­ernment action X, by discriminating against LGB individuals, unconstitutionally burdens, penalizes, or inhibits that choice.⁴⁵

This doctrinal structure—while arguably warranted under existing law—nevertheless creates obvious risks for the LGB rights movement’s claims to equality.  “Choice” has long been the language of the opponents of LGB equality.  (Supporters have typically—albeit not universally—contended for an understand­ing of sexual orientation as functionally immutable.)⁴⁶  Thus, social science re­search demonstrates that perceptions of sexual orientation as functionally immutable (or conversely as chosen) strongly correlate with beliefs about LGB equality.⁴⁷  Those who believe sexual orientation is immutable are far more likely to support legal equality for LGB individuals than those who do not.⁴⁸ 

Moreover, there are reasons to believe that this phenomenon—rather than being simply correlational—in fact reflects a causal relationship between choice and (in)equality.  Thus, for example, experiments have shown that a simple manipulation—such as prompting study participants to think about choice—signif­i­cantly reduces support for equality norms across an array of contexts.⁴⁹  Similarly, experimental work has shown that enhancing perceptions of a group’s status as chosen (or controllable) significantly reduces subjects’ willingness to char­acterize adverse treatment targeted at the group as discrimination.⁵⁰  Thus, the social science research strongly suggests that choice and equality—far from being mutually reinforcing concepts—are for many Americans perceived as antithetical.

But there is an even more direct concern that the choice framing of LGB equality creates.  Even if one discounts the social science, equal protection doctrine itself favors immutability.⁵¹  Thus, immutability is one of only a small group of factors that the courts take into consideration in determining which groups will be afforded heightened scrutiny.⁵²  And while the courts’ conception of immutability has never been strict—extending to reach theoretically mutable, but very difficult to change, core identity characteristics—the key inquiry has been framed precisely as whether there is an absence of meaningful choice.⁵³  Indeed, Yoshino himself has written compellingly about the failures of discrimination doctrine—both stat­utory and constitutional—to protect conduct that is perceived as (or that is actu­ally) alterable.⁵⁴  Thus, framing sexual orientation discrimination as a penalty on choice—even a constitutionally protected choice—may create a profound con­flict with attempts to secure group-based protections under traditional equal protec­tion law.

Conclusion

Yoshino writes eloquently and passionately about the need—for all of us—to have a legal regime that nurtures our “authentic selves.”⁵⁵  He understands, on a deep level, the limitations of formal equality in achieving that goal.⁵⁶  And he is right­ly concerned about the balkanizing effects of an identity politics model: its ina­bil­ity to forge, as Yoshino puts it, a “new broader sense of we.”⁵⁷  It is these very real concerns—concerns which I share—that have pushed him to look outside tra­di­tional equality doctrine and toward liberty claims.⁵⁸

But formal equality—whatever its limitations—remains any subordinated group’s most vital goal.  With formal equality comes deterrence: for most, the law’s most valuable protection.⁵⁹  And the moral message that formal equality sends—that the group has crossed the threshold to full constitutional inclusion—shifts the terms of the debate in a way no liberty argument can.  Thus, for the LGB rights movement, the answer to the “new equal protection,” is, I think, “perhaps someday” but “not now.”⁶⁰  And for the coming term?  A return to the “old” equal protec­tion, to seek its flawed—but irreplaceable—gains.