Tribe believes that approaching the Constitution with a unified theory is impossible.

Topic: Equality vs. Liberty

Laurence Tribe: Well I think that the Preamble to the Constitution, which talks about the . . . the blessings of liberty, says a great deal.  We should take it more seriously than we sometimes do.  The Constitution is about self-realization on the part of individuals and communities, creating a framework of government that makes it possible for people to realize their human potential both as individuals and as parts of intimate gatherings; and as parts of associations, and families, and communities.  Equality, it seems to me, is part and parcel of that.  That is there is no meaningful liberty without equality.  The liberty of the slave owner to dominate the slaves is a false liberty.  Human dignity is an indispensable part of meaningful self-realization.  Dignity can’t flourish when some people are in a position of domination over others.  I think that the best way to understand the role of liberty and of equity in the Constitution is to think of the Constitution as centrally concerned with protecting the equal liberty of citizens.  And so liberty and equality, rather than being in some inherent tension, I think deeply understood go hand-in-hand.  Consider, just for example, the gay rights cases in the Supreme Court.  The one that I argued and lost by a vote of 5-to-4 in the 1980s, Bowers v. Hardwick, involved a Georgia Law that did not outlaw just gay sex – same sex encounters.  It outlawed all oral and anal sex.  But people should have understood that that law was used primarily to subordinate and dominate gay men and lesbians.  It was used often as an excuse to deny them jobs.  It was used as an excuse to exclude them from our shores.  It was used as an excuse to deny them adoption.  Restriction on liberty was used to deny equal dignity.  It wasn’t even very often enforced in the bedroom.  It happened to be enforced in this one case, although the guy was arrested, held overnight and then released.  The Supreme Court turned it perversely into an equality case without necessarily meaning to.  The Supreme Court said that the issue in that case was not what I had described it as being – what is the State of Georgia doing in this man’s bedroom?  The issue is what is he doing in his bedroom.  The issue is whether homosexual sex is a fundamental liberty.  Well that was the spin the Supreme Court put on it.  He didn’t make any special thing out of being gay.  The law itself drew no distinction between same sex and opposite sex – sodomy as they called it.  It’s just that the law was used to oppress gay people and not to oppress straight people.  But the issue presented was whether the state has any business telling people in the intimacy of their bedrooms with other consenting adults which part of their anatomy comes into intimate contact.  And I believed then and believe still it has no business doing that.  Flash forward to several years ago when the issue came to the court in the guise of the law that did draw a distinction between same sex and opposite sex sodomy. It said that oral and anal sex is a crime when committed by people of the same gender but not otherwise.  It was possible to treat that law as raising only an equality question.  If you’re going to let a man and a woman have oral sex, how can you deny the same intimacy to a man and a man or to a woman and a woman?  But I thought it was important in that case to present the issue not only in terms of equality, but also in terms of liberty.  Because the Court had created a serious inequality by the way it defined the issue in Bowers v. Hardwick and the way it decided the case.  The net result was that as a matter of law, gays were now being subordinated.  If the court had turned around and had said to the state of Texas – which had the law that punished only same sex, oral, and anal intimacies – that it said to the state of Texas, “Fix up your law.  Make it a law against all oral and anal sex and then we’ll approve it.”  If it had decided it on that narrow equality ground, which is what O’Conner in a recurring opinion wanted to do, the net result would have been that the law on its face would have looked equal; but like the Georgia law it would have been used to oppress gays and lesbians; to deny them equal dignity.  And so it was, I think, a remarkable triumph for the synthesis of liberty and equality when Justice Kennedy for a majority of the Court said that we are not going to decide this case purely on the ground that it draws a distinction between same sex and opposite sex intimacy.  We’re going to say that Bowers v. Hardwick, which had dealt with the law (44:35) drawing no such distinction, was wrong from the get go; wrong the very day it was decided – the only time the Supreme Court has ever said of one of its own precedents not only that it’s going to be overruled, but that it was an insult to justice at the day it was decided.  And what the Kennedy Opinion says is that this kind of intimacy cannot be prohibited by law partly because such a prohibition, even if it is written evenhandedly, would be used to demean and oppress a group of people just for their personal intimate orientation and choice.  That, it seems to me, is a story that shows the connection between liberty and equality in a richer way than a pure abstraction could do.