Document Type

Article

Publication Title

University of Chicago Legal Forum

Abstract

These general ruminations play out in explicit fashion in connection with the question of whether equal protection or privacy is the appropriate framework in which to analyze the rights of gays and lesbians. Here, my first instinct is to bridle at the way the question is formulated because it seems better to ask what rights all individuals have under the Constitution just by virtue of being citizens of the United States or persons subject to its laws. I am much more comfortable with starting from general principles and reaching a specific conclusion about a given group, than I am with starting with an affinity for particular groups and then casting about for the general principles that secure them their desired rights. Therefore, the question that I put is: how might this general approach apply when we look first to substantive protections of individual rights and then through the equal protection lens? My thesis is that, rightly understood, and in contrast to the position taken by Andrew Koppelman, the two approaches tend to converge on most (but not all) issues regardless of the best efforts to keep them apart. The dominant issue then deals with second order effects: which journey has fewer bumps along the way?

First Page

73

Volume

2002

Publication Date

2002

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