Jill Lepore is a well-known historian who regularly writes for the New Yorker. Her latest piece, To Have and To Hold: Reproduction, Marriage, and the Constitution, takes up the legal arguments that lawyers have been making vis-a-vis LGBT rights and contrasts them with reproductive rights legal arguments. Here’s the pith:
There is a lesson in the past fifty years of litigation. When the fight for equal rights for women narrowed to a fight for reproductive rights, defended on the ground of privacy, it weakened. But when the fight for gay rights became a fight for same-sex marriage, asserted on the ground of equality, it got stronger and stronger.
Tap dancing through constitutional history from the ratification of the 14th Amendment to Obergefell, but largely focusing on the legal arguments made and (sometimes) accepted by the Supreme Court in reproductive rights (Griswold, Roe) and LGBT (Bowers, Lawrence) cases, Lepore seems to believe that if lawyers had just made better (read equal protection) arguments reproductive rights might be ascendant like SSM.
This is quite wrong, but serves as an occasion to review why the law developed as it did. Mark Graber, over at Balkinization, in a slightly mocking but yet deadly serious post, has taken down Lepore’s argument from the perspective of race and equal protection (“Maybe Freddie Gray Should Have Made Equality Arguments” is the post’s title). Expanding on that: for a piece of work by a historian, Lepore surprisingly lacks attentiveness to historical context. Most obviously, equal protection arguments were not “available” to the justices in Griswold. Recall that Hoyt v. Florida, largely contemporaneous with Griswold, rejected an equal protection argument made by a woman who faced an all-male jury — even Justices Warren and Douglas concurred in that ruling. What is more, Yale law professor Tom Emerson — Griswold’s attorney — did not bother setting forth an equal protection argument, and none of the justices in conference afterward considered it a possible textual hook to overturn the Connecticut birth control law. David Garrow’s history tells us that Warren explicitly rejected the Equal Protection Clause argument, and the justices who voiced a textual or doctrinal rationale insisted on a right to privacy, the Due Process Clause, and Pierce and Meyer.
Lepore makes hay that amicus briefs submitted in Griswold set forth an equal protection argument. And law professor Justin Driver has written a paper arguing that the Warren Court could have ruled in favor of Hoyt (and indeed, according to Driver, could have been an even more liberal court). However, when one considers the howls of laughter in response to segregationist Rep. Howard Smith’s (D-Va) inclusion of “sex” into the 1964 Civil Rights Act, these arguments take on a post hoc flavor. The elite consensus was simply not there for an equal protection argument to command five votes.
One important reason for that is legal norms and mores. There was no equal protection case for Emerson to cling to, but there was Meyer and Pierce (remember further that in 1927 Holmes had called equal protection claims “the usual last resort of constitutional arguments”). These right to privacy cases had created something of a path dependence for the Court and for litigators. Moreover, some of the justices, saliently Douglas, consciously avoided substantive due process and Lochner like the good New Dealers they were. This was another constraint that help shape Douglas’s “penumbra” opinion and Goldberg’s 9th Amendment concurrence.
And of course Griswold led to Eisenstadt which led to Roe. Despite recognizing a gender rights claim in Reed v. Reed, neither the Court nor the lawyers crafting the rights claims in Roe took the equal protection argument seriously (Lepore’s piece excerpts Justice Stewart lightly giving Norma McCorvey/Roe’s attorney grief for her kitchen sink argument in regard to the textual basis for the abortion right). Instead, the first round of arguments in Roe saw the justices mostly concerned with abortion as a medical procedure and the re-argument — so that Justices Powell and Rehnquist could participate — focused on the constitutional status of the fetus. Here again, the path dependence of what came before helped shape the legal arguments; the available “on-the-wall” legal arguments as Jack Balkin puts it. It would take the thrashing of Justice Blackmun’s opinion* — saliently by John Hart Ely and later in the decade by the emergent Christian conservative right — for liberals to begin to think about the Equal Protection Clause and other textual homes for abortion rights claims (none of which have ever been adopted by the Court).
There are other problems with Lepore’s argument — e.g., her odd take on the 19th Amendment and the issues highlighted by Graber — and her overall point seems of a piece with those op-ed writers who troll political scientists with “Obama just needs to use the bully pulpit to tell a better story” editorials. Lawyers cannot advance arguments that won’t be taken seriously if they want to be taken seriously. Just the same, justices want to be taken seriously by their relevant audience. Simply because someone is willing to posit a particular legal argument does not make it available to the justices. Lepore would do well to remember, for example, that about the same time Sanford Levinson wrote “The Embarrassing Second Amendment,” and Don Kates was helping work up the intellectual framework for gun rights claims, ex-Chief Justice Burger was telling Americans that the individual rights view of the 2nd Amendment was “a fraud.” What happened between 1989/90 and Heller (2008) — on that score I would recommend Tom Keck’s latest book — with the gun rights movement is how constitutional law is created (and one could trace the full story back another twenty-odd years). That is, clever or sophisticated legal arguments are perhaps necessary to make constitutional law, but they are never sufficient.
*Blackmun appears to have been “egged on” by other justices to write a more expansive opinion than he was initially inclined to write.