This article, “Some Penetrating Observations on the Fifth Anniversary of Lawrence v. Texas: Privacy, Dominance, and Substantive Equality Theory,” asks the reader to look at the equality claims of minority groups at a new conceptual level. With the Lawrence decision as its critical paradigm, the essay proceeds through several observations on the failure of privacy/substantive due process grounded opinions to deliver rights to minorities. This discussion feeds an ultimate criticism of the equality analysis (or lack thereof) of many of the Court’s principal minority rights opinions. Particularly, I am critical of the longstanding notion that equal protection of the laws means that persons similarly situated must be treated the same under the law. I argue that the similarly situated test is dangerous to the rights of minorities, and especially dangerous for gay rights claims.
I explain how the privacy/substantive due process rationale employed by the Court in Lawrence actually served to further entrench heteronormative dominance at the expense of real equality. I argue instead for a "substantive equality" rationale that would avoid this result and would create access to foreclosed public spaces (e.g., marriage) that currently operate as institutionalized, hetero-dominated hierarchy in contravention of equality.
Available at: http://works.bepress.com/shannon_gilreath/1/