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In this essay, I argue that the problems with how courts apply Equal Protection principles to classifications not already recognized as suspect reach beyond the most immediate example of sexual orientation. Three structural weaknesses drive the juridical reluctance to bring coherence to this body of law: two doctrinal and one theoretical. The first doctrinal problem is that the socio-political assumptions that the 1938 Supreme Court relied on in United States v. Carolene Products, Inc. to justify strict scrutiny for “discrete and insular minorities” have lost their validity. In part because of Roe v. Wade-induced PTSD, the courts have not generated a replacement paradigm for a society that is radically more diverse than the United States was at that time. The second doctrinal problem is that the discourse of Equal Protection law has morphed into judgmentalism, tending to infuse analysis of classifications with weighing of whether a particular group of persons deserves judicial protection against majoritarian legislation. Finally, a theoretical issue has long plagued Equal Protection law: the role of ideology. Ostensibly irrelevant, it has nonetheless crept into the case law through references to, e.g., “white supremacy,” but has never been fully and properly analyzed.

The role of ideology and its relationship to the original meaning argument advanced by Professor Eskridge generates my primary critique of his claim. While the dynamics of gender and sexuality can be separated in many instances, I argue that they are inextricably intertwined in the ideological foundations for discrimination based on sexual orientation (though not always in the manifestations of such discrimination). Recognizing this melded conceptualization would enrich equality principles more than reading a sexual orientation distinction alone into the scope of the original meaning of the Fourteenth Amendment, and a strong doctrinal claim of sex discrimination is available for the Court to invoke.

Publication Citation

52 Hous. L. Rev. 1121-1145 (2015)