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UC Law Constitutional Quarterly

Julie A. Nice

Abstract

Across the constitutional doctrines protecting individual liberty from governmental interference, judicial inquiry often focuses on the unequal infringement of liberty. Many of the most important individual rights have emerged from the synergy between equality and liberty. But the Court has not yet provided any framework for understanding the various ways that liberty and equality interrelate. Neither has any consensus developed around any scholarly attempt to understand the relationship between liberty and equality. Without any grand theory, the search for understanding this important relationship is thus left to induction, as scholars examine one case at a time to glean both specific and general insights, resembling a sort of common law constitutionalism. This approach has generated several major options: liberty and equality might be distinguished and treated as separate and independent infringements, one might be incorporated or subsumed within the other, one might sequentially generate the other, the two might be combined or "stacked," they might be understood as interacting in a mutually constitutive manner, and/or they simply might conflict with one another.

This article continues the inductive search for constitutional meaning, specifically exploring how the United States Supreme Court's recent decision in Christian Legal Society v. Martinez understands the linkage between liberty and equality in the context of expressive association. Using a close examination of the Martinez opinions and related decisions, as well as some cross-doctrinal comparison, this article seeks to understand what was at stake in this particular controversy and to explore the implications of the decision. One reading is that Martinez simply favors the enforcement of equality over the freedom to discriminate. This article concludes that Martinez also aligns the incidental effects cases in the context of expressive association with the incidental effects cases in the context of free exercise of religion as well as the disparate impact cases in the context of equal protection. In short, across these constitutional doctrines, the Court invokes higher scrutiny to protect equality only if persuaded that the government is engaging in intentionally invidious discrimination. Moreover, by refusing to conflate openly gay identity with any ideological expression, Martinez enhances liberty, making space for an individual to embrace any religious ideology regardless of his or her sexual orientation.

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