Associate Professor Eric Berger will publish his most recent article, Lawrence’s Stealth Constitutionalism and Same-Sex Marriage Litigation, in the William and Mary Bill of Rights Journal. Professor Berger has presented on this topic at the Third Annual Constitutional Law Colloquium, held at Loyola University Chicago School of Law.
He also gave a 15 minute version of his talk for the Law College's S.T.I.R. series, with over 100 students, faculty, and staff in attendance.
Here is the abstract for the article:
Constitutional law scholarship often focuses on two taxonomies: doctrinal categories and interpretive methodologies. Consequently, constitutional scholars sometimes neglect other important facets of constitutional decision making, particularly extra-doctrinal stealth determinations that courts render frequently in constitutional opinions. The U.S. Supreme Court regularly uses these determinations, but despite their centrality to constitutional decision making, they often remain invisible to scholars and judges. Lawrence v. Texas exemplifies the Court’s reliance on these stealth determinations. Lawrence framed the question at a broad level of generality; declined to identify a level of scrutiny; overruled an earlier constitutional decision; invoked changing public opinion; and relied on hybrid reasoning, using equal-protection rationales to support a substantive-due-process holding. Each of these moves helped the Court justify 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 turn on 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. That being said, stealth determinations, paradoxically, also can help reinforce judicial legitimacy by giving the Court flexibility that constitutional doctrine sometimes does not. Stealth determinations’ costs and benefits, then, are complicated and reflect deep tensions within our constitutional system.