The Synergistic Evolution of Liberty and Equality in the Marriage Cases Brought by Same-Sex Couples in State Courts

Legal scholars have expressed varying views about the roles of liberty and equality in the area of lesbian and gay rights. Some have encouraged gay rights litigators to stress one form of argument over the other. At least one commentator, Pamela Karlan, has suggested that looking at the issue through the lenses of both the due process clause and the equal protection clause simultaneously can have synergistic effects, producing results that neither clause might reach by itself. This article examines selected marriage cases brought by same-sex couples in state courts in order to understand the role played by liberty and equality in this one segment of gay rights litigation. It is the thesis of this Article (written with the benefit of 20/20 hindsight) that, by focusing on the two constitutional issues simultaneously, gay rights litigators in the state court marriage cases have sparked a synergistic evolution of both liberty and equality under state constitutional law