Lawrence's Stealth Constitutionalism and Same-Sex Marriage Litigation

By Berger, Eric | The William and Mary Bill of Rights Journal, March 2013 | Go to article overview

Lawrence's Stealth Constitutionalism and Same-Sex Marriage Litigation


Berger, Eric, The William and Mary Bill of Rights Journal


ABSTRACT

Constitutional law scholarship often focuses on two taxonomies: doctrinal categories and interpretive methodologies. Consequently, constitutional scholars sometimes neglect other important facets of constitutional decisionmaking, particularly extra-doctrinal stealth determinations that courts render frequently in constitutional opinions. The U.S. Supreme Court regularly confronts the questions underlying these determinations, but despite their centrality to constitutional decisionmaking, these issues often escape careful scrutiny.

Lawrence v. Texas exemplifies the phenomenon. Lawrence framed its central question at a broad level of generality; relied on hybrid reasoning, using equal-protection rationales to support a substantive due process holding; declined to identify a level of scrutiny; and invoked changing public opinion. Each of these moves helped the Court reach its outcome, but, significantly, the Court inadequately theorized each, leaving considerable doubt about how it would approach similar inquiries in future cases. The result is legal uncertainty. For example, cases challenging the constitutionality of state same-sex marriage bans will likely confront many of the same sub-doctrinal determinations that Lawrence purported to resolve. However, because Lawrence did so little to justify its resolution of those determinations, the Court has little to guide it when confronting those determinations again in a marriage case-or any case.

Such opacity threatens judicial transparency, consistency, and predictability. That being said, stealth determinations, paradoxically, also can help reinforce judicial legitimacy by accounting for cultural norms and providing the Court with flexibility while still preserving the appearance of impartiality. Stealth determinations, then, can simultaneously undermine and fortify judicial legitimacy, thus reflecting deep tensions in the Court's approach to constitutional adjudication.

INTRODUCTION 766

I. LAWRENCE'S STEALTH DETERMINATIONS 772

A. The Easiness and Difficulty o/Lawrence 772

B. Stealth Determinations in Lawrence 774

1. Levels of Generality 774

2. Doctrinal Categorization and Hybrid Constitutional Rights 778

3. Tiers of Scrutiny 78 1

4. The Role of Public Opinion 782

C. A Continuum of Stealth 785

II. Same-Sex Marriage and Constitutional Confusion 786

A. Developments Since Lawrence 786

1. Legal and Cultural Changes 786

2. Pending Cases 788

B. Same-Sex Marriage Litigation and Stealth Constitutional Determinations 789

1. Levels of Generality 790

2. Doctrinal Categorization and Hybrid Constitutional Rights 795

3. Tiers of Scrutiny 800

4. The Role of Public Opinion 803

III. Explanations and Implications 807

A. Stealth Determinations and Meta-Constitutionalism 807

B. Explanations 808

C Stealth Determinations, Rule of Law, and Judicial Legitimacy 811

1. Transparency, Candor, and Rule-of-Law Problems 811

2. Cultural Norms and the Paradoxes of Judicial Legitimacy 816

CONCLUSION 819

INTRODUCTION

Constitutional scholars often focus on two dominant taxonomies. The first is straightforward doctrinal categorization. Courts, casebooks, and treatises organize cases by the constitutional provision they address.1 Hence, we have a commerce clause doctrine, an equal protection doctrine, a free speech doctrine. The second well-known constitutional taxonomy organizes different interpretive approaches, what Philip Bobbitt calls "modalities."2 These modalities include arguments rooted in constitutional history, text, structure, precedent, and so on.3

Both these taxonomies are useful ways of organizing issues of constitutional law and interpretation. However, because they tend to think about the Constitution through these categories, judges and even constitutional scholars have often neglected other important facets of constitutional decisionmaking. …

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