Foreword: Loving Lawrence.

• Author: Karlan, Pamela S.

When you come to a fork in the road, take it.--Lawrence Peter (Yogi) Berra

Two interracial couples. Two cases. Two clauses. In Loving v. Virginia, (1) the Supreme Court struck down a Virginia statute outlawing interracial marriage. In Lawrence v. Texas, (2) the Court struck down a Texas statute outlawing sexual activity between same-sex individuals. Each case raised challenges under both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.

Loving marked the crystallization, a dozen years after Brown, (3) of the antisubordination principle: Virginia's law ran afoul of the Equal Protection Clause because it reflected nothing more than arbitrary and invidious discrimination "designed to maintain White Supremacy." (4) In reaching that conclusion, the Court employed a then-novel formulation: strict scrutiny. (5) Chief Justice Warren noted that in cases "involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations"; by contrast, in cases involving racial classifications, the Equal Protection Clause imposes a "very heavy burden of justification." (6)

But Loving was not simply an equal protection case. Rather, the case represents a turning point, as the Court moved from the completed project of imposing strict scrutiny on racial classifications toward a new project of applying strict scrutiny to limitations on fundamental rights. In its final two paragraphs, Loving marked the rebirth of substantive due process: Virginia, the Court declared, had "deprive[d] the Lovings of liberty without due process of law" by denying them the "freedom to marry [that] has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." (7)

Today, most courts and scholars see the Equal Protection and Due Process Clauses as discrete bases for strict scrutiny. (8) But in Loving, the two clauses operated in tandem. For example, in articulating its Due Process Clause-based argument, the Court relied on Skinner v. Oklahoma, (9) an equal protection decision, for the proposition that marriage "is one of the basic civil rights of man." (10) It explained that "[t]o deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law." (11) This use of equal protection decisions to inform conceptions of liberty, and vice versa, was a hallmark of the Warren Court. (12)

In this Essay, I argue that Lawrence resembles Loving in important ways. Like Loving, Lawrence marks a crystallization of doctrine. Nearly forty years after Griswold v. Connecticut (13) and Loving, the Court has clearly established the principle that "the substantive reach of liberty" under the Due Process Clause extends to the way individuals choose to conduct their intimate relationships. (14) But just as Loving was a case about inequality that informed the jurisprudence of liberty, Lawrence is a case about liberty that has important implications for the jurisprudence of equality. In fact, liberty and equality are more intertwined in Lawrence than in Loving. The Loving Court could have rested its decision entirely on the unconstitutionality of racial subordination without looking at all at the importance of marriage; by contrast, the Lawrence Court's discussion of liberty would be incoherent without some underlying commitment to equality among groups. The Warren Court often espoused "substantive" equal protection; the Lawrence Court attacked a "suspect" deprivation of liberty.

Lawrence relates to Loving in yet another important way. Loving drew a clear distinction between rationality review and heightened scrutiny. Lawrence, by contrast, sidesteps this conventional doctrinal framework. Loving reflected the emergence of strict scrutiny under both the Equal Protection and the Due Process Clauses; Lawrence, however, does to due process analysis something very similar to what the Court's previous gay-rights decision, Romer v. Evans, (15) did to equal protection analysis: it undermines the traditional tiers of scrutiny altogether. This approach reflects more than simply the fact that the two opinions share the same author. Both Lawrence and Romer v. Evans express an "analogical crisis." (16) Gay rights cases "just can't be steered readily onto the strict scrutiny or the rationality track," (17) let alone onto the due process/conduct or the equal protection/status track. Cases about race created the modern framework of heightened scrutiny; cases about sexual orientation may transform it.

1. THE SOLUTION LAWRENCE OFFERS

   In prior substantive due process cases, the Supreme Court had stressed the importance of providing "a careful description of the asserted fundamental liberty interest." (18) If the liberty interest is fundamental, then strict scrutiny applies: a reviewing court can uphold the government's restriction only if "the infringement is narrowly tailored to serve a compelling state interest." (19) Lawrence marks a striking departure from this approach. First, with respect to the liberty interest at issue, the Court was magisterial but vague. Second, the Court never reached the question whether to apply strict scrutiny. At its core, the liberty interest at issue in Lawrence is the right of gay people to equal respect for their life choices. The reason the level of scrutiny did not matter is that laws that reflect nothing more than class-based animosity against gay people lack even a legitimate government purpose (20)--a conclusion that, whatever the Court's doctrinal handle, sounds in equal protection. (21)

   A logical starting point in thinking about the liberty interest upon which a law infringes is to look at the conduct the law forbids. In challenges to laws restricting abortion, for example, the fundamental liberty involved is usually treated as the right to terminate a pregnancy or to decide whether to bear a child. That was decidedly not the tack the Court took in Lawrence. Section 21.06 of the Texas Penal Code made it a crime for individuals of the same sex to engage in a specified list of sexual acts, (22) but the Court vehemently rejected the view that the liberty interest at issue was "simply the right to engage in certain sexual conduct." (23) That view, the Court declared:

   demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. (24) Part of the Court's response was simply to ratchet up the level of generality at which the liberty interest was described: rather than having a constitutional right to engage in oral or anal sex, individuals have a constitutionally protected interest in creating a "personal relationship" (25) in which "sexuality finds overt expression in intimate conduct with another person." (26) But the Court's approach was actually even more sweeping, as it straddled the conventional distinction between negative and positive conceptions of liberty. (27) Although the opinion's opening lines characterized liberty as "protect[ing] the person from unwarranted government intrusions into a dwelling or other private places," (28) the opinion ranged far beyond treating liberty as merely the "absence of interference" by the state, (29) or "the right to be let alone--the most comprehensive of rights and the right most valued by civilized men." (30) Most of the opinion relied on a more positive notion of liberty as involving the ability to be "a doer--deciding, not being decided for, self-directed ... [and capable] of playing a human role, that is, of conceiving goals and policies of [one's] own and realizing them." (31) And so the Court described the liberty at issue as gay people's right to "control their destiny," (32) because "[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." (33)

   By moving away from conceiving of liberty as involving distinct conduct, the Court recast the right as involving not just autonomy but equality as well. As a practical matter, the major effect of section 21.06 surely was not its interference with gay people's love lives. The law was virtually never enforced (34)--at least not against the kind of behavior the Court was prepared to protect. (35) It's hard to imagine that the law had any activity-level effects on nonpublic, consensual behavior at all. (36) Statutes banning private, consensual sexual activity are thus quite different from the laws at issue in the Court's previous autonomy cases. A law banning the sale of contraceptives, like the laws at issue in Griswold (37) or Eisenstadt v. Baird, (38) or a law restricting the right to abortion, like the laws at issue in Roe v. Wade (39) or Planned Parenthood v. Casey, (40) is far more likely to interfere with individual behavior because it operates by deterring third parties--pharmacists, doctors, and medical institutions--from providing necessary goods or services. By contrast, the fact that states make virtually no effort to enforce criminal prohibitions on private gay sexual activity makes it implausible to see the statutes as actually directed at the acts...