Shannon D. Gilreath (Wake Forest University - School of Law) has posted Some Penetrating Observations on the Fifth Anniversary of Lawrence v. Texas: Privacy, Dominance, and Substantive Equality Theory on SSRN. Here is the abstract:
This essay will explain why the privacy rationale employed in Lawrence v. Texas, its obvious equality promotion notwithstanding, served to further entrench heteronormative dominance at the expense of real equality. An applied equality rationale would have avoided this result and would have created access to foreclosed public spaces (e.g., marriage) that currently operate as institutionalized, hetero-dominated hierarchy in contravention of equality.
This essay proceeds through several observations about privacy theory's failings to an ultimate criticism of the equality analysis (or lack thereof) of the Lawrence opinion itself. Particularly, I am critical of the longstanding notion that equal protection of the laws means that persons similarly situated must be treated the same under the law. I argue that the similarly situated test is especially dangerous for Gay equality interests, and for the rights of other minorities.
Part I examines some of the jurisprudential trade-offs implicit in privacy doctrine rather than equal protection ideas to ground the type of liberty the Court considered in Lawrence. Part II considers the specific risk that privacy doctrine poses for Gays - mainly that their identity rests on being assimilated into a heterosexual model from which they are always already excluded. Part III considers an alternative grounding for the legal rights of Gays sought in Lawrence: Substantive Equality looks through mere legal forms because it recognizes the undeniable context of social dominance in which sexual minorities seek limited recognition. Parts IV and V consider two special virtues of the substantive equality approach: it can override arguments for discrimination based on religion, and it is strong medicine against the stigma imposed on identity groups that are otherwise subordinated, both in law and fact. Part VI concludes with a consideration of the role of prudence in constitutional decision-making, and with a warning that prudence should not be used as an excuse to shirk remedying denials of equality, like those the Gay litigants charged in Lawrence.
