Article

Marrying Liberty and Equality: The New Jurisprudence of Gay Rights

Equal protection and due process are often intertwined. They work in tandem to illuminate aspects of constitutional questions that can be seen less clearly through the lens of a single clause. Nowhere is this more true than in the context of same-sex marriage, which by its nature implicates both equality and liberty values. This Article examines how courts’ interwoven Fourteenth Amendment analysis affects the meaning of the recent marriage cases and shapes the emerging constitutional jurisprudence of gay rights.

By choosing to focus on the equality component, courts have emphasized the continuity between laws excluding same-sex couples from marriage and other forms of anti-gay regulation. They have analyzed marriage laws not as sui generis, but rather, as part of an increasingly discredited legal regime that accords gays and lesbians secondary status. This regime was founded on a set of descriptive and prescriptive stereotypes: Homosexuals were viewed as enemies of the family, sexually predatory, and dangerous to children, and anti-gay regulations sought to channel men and women into traditional sexual and gender roles. Courts in recent marriage cases have held that laws that reflect and reinforce such stereotypes are no longer consistent with equal protection. But this anti-stereotyping approach also has implications for how courts understand the liberty component of the marriage question. Historically, anti-gay regulations sought to dissuade people from engaging in homosexual behavior and to steer them into heterosexual relationships and conventionally gendered family structures. Part of what courts are protecting when they protect the right to marry a partner of the same sex is the right to be free from such regulation.  

Now that same-sex marriage is inevitable, some former opponents have begun to argue that the marriage cases are all about marriage—that these decisions affirm “traditional family values” and validate efforts by the state to steer all Americans into marriage and punish those who remain outside it. This interpretive frame overlooks the intertwined nature of liberty and equality in the recent marriage cases and obscures the implications of these cases for the rights of gays and lesbians more generally—whether or not they’re the marrying kind. 

Concurrent Damages

In areas as diverse as copyright, pollution, consumer protection, and electronic privacy, statutory damages have become a familiar form of civil remedy. Yet judges are discovering that these formulaic awards can swing by orders of magnitude for arbitrary reasons—resulting in windfalls for some but little relief for others—due to the rigidly linear way in which the awards stack up, count by count. The irony is that too much structure, rather than too little, is what generates such capricious outcomes.

This Article proposes a solution: allow courts to run damages concurrently. As with concurrent criminal sentencing, the judge would recognize every act of violation, and yet group the nominal counts so that the effective penalties do not stack up arbitrarily. This simple option enables judges to tailor the structure of damages to match more closely how the harms actually add up (“Should the copyright damages accumulate per song, per album, per artist, or per playlist—in this case?”). Moreover, it can displace the troubling fudges—such as fictional awards—that some courts use when bound by the rigidity of statutory damages. Creating a concurrent damages option may thus make possible not only more accurate and consistent compensation but also clearer, truer signals for future actors and future courts.

Immigration’s Family Values

This Article takes an institutional approach to analyzing how the law determines parentage in diverse doctrinal contexts. We argue that immigration and citizenship law use different parentage tests than family law not because lawmakers have failed to properly incorporate family law principles but because lawmakers’ interests are not the same in the immigration context. State family law’s primary interests are protecting children, preserving well-functioning parent-child relationships, and ensuring that each child has two parents who are designated as legally and financially responsible. Immigration and citizenship law, in contrast, implicate the federal government’s interest in achieving optimal numbers of immigrants and citizens. In addition, because the benefits of lawful immigrant status and U.S. citizenship are so extensive, an important state interest in determining parentage in the immigration and citizenship context is the ferreting out and prevention of fraud. As a general rule, the context in which parentage disputes arise in immigration and citizenship cases differs greatly from the circumstances that lead to custody or divorce proceedings. Thus, the “family values” espoused by immigration and citizenship law are very different from those we are accustomed to seeing in family court.

Where immigration and citizenship law fail, they fail on their own terms, and we must understand their core values in order to critique them and to offer workable solutions. For example, current federal policy privileges interests in optimal citizenship and immigration and in fraud prevention at the expense of allowing U.S. citizens and lawful permanent residents to exercise their own liberty interests in preserving parent-child relationships. We critique this policy, however, not because it deviates from state family law principles but because it fails to recognize the government’s interests in preserving the family relationships of its citizens.

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