by Jeremy Leaming
This year marks major anniversaries of several landmark Supreme Court opinions, including two that advanced liberty and equality. In January 1973, the high court in its Roe v. Wade opinion trumpeted liberty by striking a Texas law banning abortion. Equality and liberty were also advanced in June 2003 when a majority of the justices in Lawrence v. Texas invalidated a law targeting sex between consenting adults of the same gender.
On Jan. 18 – 19 as part of the Constitution in 2020 project, several groups, including ACS, will host “Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries.” (See below for more information about the gathering, including a tentative conference schedule.)
In striking down a state law banning abortion, Justice Harry Blackmun declared that a “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state actions, as we feel it is, or as, the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
The Roe court, however, did not find this right to be absolute, and subsequently we have seen an erosion of this liberty in a steady and disconcerting fashion by courts and lawmakers over the years. Indeed a string of states over the past few years has ratcheted up efforts to make it vastly more difficult for many women, especially the young and poor, to have abortions. State lawmakers have also pushed laws requiring physicians to lecture women on the alleged dangers of abortions and/or undergo ultrasounds all in an effort to slow the process or dissuade women from abortions.
In 2003’s Lawrence, the majority of the court also advanced liberty by knocking down a Texas law that criminalized sex between people of the same gender. And like Roe, the majority found that liberty is broad enough to prevent the government from intruding upon intimate relations of lesbians and gay men. Indeed, Justice Anthony Kennedy writing for the Lawrence majority, citied the high court’s 1992 Planned Parenthood v. Casey opinion upholding Roe. In Casey, the Court wrote, “These matters, involving the most intimate personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”
Kennedy’s Lawrence opinion also advanced equality, saying the challengers of the Texas law persuasively argued that their equal protection rights were subverted by a law that criminalized an intimate part of their relationships.
Lawrence, Kennedy wrote, involved “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of government.”
But 40 years after Roe and 10 after Lawrence where do things stand? As mentioned above, attacks on women’s liberty are beyond steady, they are increasing. According to polls there’s growing support for same-sex marriage. But that doesn’t mean the current Supreme Court is ready to support marriage equality. And the majority of states still have laws banning same-sex marriage.
As constitutional scholar and Yale Law School Professor Jack M. Balkin notes on Balkinization, a forthcoming conference focusing on these two landmark cases will “bring together leading experts on gender and sexuality to analyze the past, situate current conflicts, and contemplate the future.” The gathering, hosted by ACS, the Williams Institute, UCLA School of Law, the Yale Information Society Project and the Program for the Study of Reproductive Justice, will include six panel discussions packed with an amazing group of scholars, activists and advocates.
The tentative schedule of “Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries,” via Balkinization is below. The conference is part of the Constitution in 2020 project, and registration information is available here. Balkinization is also featuring guest blogging from some of the conference’s participants. In the coming days, ACSblog will highlight and link to that blogging.
Friday, January 18
Panel I – Sexual Freedom, 9 a.m. – 10:45 a.m.
· Reva Siegel, Yale Law School (moderator)
· Katherine Franke, Columbia Law School
· Nan Hunter, Georgetown Law Center/Williams Institute
· Kristin Luker, University of California, Berkeley
· Dean Spade, Seattle University School of Law
Panel II – Constitutional Frameworks, 11 a.m. – 12:45 p.m.
· Dawn Johnsen, University of Indiana Maurer School of Law (moderator)
· Jack Balkin, Yale Law School
· Matt Coles, Equality Project, ACLU
· Neil Siegel, Duke University School of Law
· Reva Siegel, Yale Law School
· Geoffrey Stone, University of Chicago Law School
Panel III – Social Movements, 2:30 p.m. – 4:15 p.m.
· Jon Davidson, Lambda Legal (moderator)
· Cary Franklin, University of Texas School of Law
· Linda Greenhouse, Yale Law School
· Douglas NeJaime, Loyola Law School, Los Angeles
· Priscilla Ocen, Loyola Law School, Los Angeles
Panel IV – Religious Liberty/Conscience, 4:30 p.m. – 6:15 p.m.
· David Cruz, USC Gould School of Law (moderator)
· William Eskridge, Yale Law School
· Louise Melling, Liberty Project, ACLU
· Jennifer Pizer, Lambda Legal
· Eugene Volokh, UCLA School of Law
Saturday, January 19
Panel V – Families, 9 a.m. – 10:45 a.m.
· Kim Buchanan, USC Gould School of Law (moderator)
· Ariela Dubler, Columbia Law School
· Melissa Murray, Berkeley Law
· Nancy Polikoff, American University Washington College of Law
· Kenji Yoshino, NYU School of Law
Panel VI – Information, 11 a.m. – 12:45 p.m.
· Jack Balkin, Yale Law School (moderator)
· Gary Gates, Williams Institute
· Maya Manian, University of San Francisco School of Law
· Ilan Meyer, Williams Institute
· Alice Miller, Yale Law School
· Robert Post, Yale Law School