Lesson 17 – The End of New Suspect Classifications?

As we have learned, determination of whether a particular classification by the

government will receive rational basis review, as nearly all classifications do, or some form of
“heightened scrutiny,” as classifications based on race and sex do, depends on whether the Court
considers the classification to be “suspect” (or, in the case of sex and intermediate scrutiny,
“quasi-suspect”). As we have also seen, over a series of cases, the Supreme Court has identified
some general considerations for determining whether heightened scrutiny should apply:
1. Whether classification is based on an immutable characteristic (something one
cannot easily change) possessed by a discrete and insular minority. See, e.g.,
Cleburne; SAISD v. Rodriguez; Frontiero.
2. Whether the characteristic upon which the discrimination is occurring bears any
relationship on the ability to contribute to, or participate in, society. See, e.g.,
Cleburne; Frontiero.
3. Whether there is a long history of discrimination (purposeful, unequal treatment)
based on that characteristic. See, e.g., Cleburne; SAISD v. Rodriguez.
4. Whether the group being discriminated against has relative political
powerlessness or has historically lacked effective representation in the political
process. See, e.g., Cleburne; SAISD v. Rodriguez.

Applying these factors, the Supreme Court has not established a new “suspect” or “quasi-
suspect” classification since the 1970s! Many thought that classifications based on sexual
orientation would receive some form of heightened scrutiny. However, as you will read in this
chapter, in several cases where the Supreme Court might have applied heightened scrutiny to
such classifications, it did not do so.

Romer v. Evans
517 U.S. 620 (1996)
Opinion: Kennedy, joined by Stevens, O’Connor, Souter, Ginsburg, Breyer
Dissent: Scalia, joined by Rehnquist, Thomas

BACKGROUND:
In 1992, the citizens of Colorado adopted an amendment to the Colorado Constitution
called “Amendment 2.” This amendment effectively repealed several Colorado cities’ non-

1
discrimination ordinances that protected people from discrimination based on sexual
orientation, and prohibited any level of government in Colorado from providing any special
protection to gays and lesbians. In this case, the Supreme Court applied the Equal Protection
Clause to invalidate discrimination against gay people. In so doing, what level of scrutiny did
SCOTUS apply? Why did SCOTUS find that Amendment 2 failed the level of scrutiny it applied?
Do you agree? Should the Court have applied some level of “heightened scrutiny” and why do
you think it did not?

Justice Kennedy delivered the opinion of the Court:

One century ago, the first Justice Harlan admonished this Court that the Constitution
"neither knows nor tolerates classes among citizens." Plessy v. Ferguson (1896) (dissenting
opinion). Unheeded then, those words now are understood to state a commitment to the law's
neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this
principle and today requires us to hold invalid a provision of Colorado's Constitution.

I
The enactment challenged in this case is an amendment to the Constitution of the State
of Colorado, adopted in a 1992 statewide referendum. The parties and the state courts refer to
it as "Amendment 2," its designation when submitted to the voters. The impetus for the
amendment and the contentious campaign that preceded its adoption came in large part from
ordinances that had been passed in various Colorado municipalities. For example, the cities of
Aspen and Boulder and the city and County of Denver each had enacted ordinances which
banned discrimination in many transactions and activities, including housing, employment,
education, public accommodations, and health and welfare services. What gave rise to the
statewide controversy was the protection the ordinances afforded to persons discriminated
against by reason of their sexual orientation. Amendment 2 repeals these ordinances to the
extent they prohibit discrimination on the basis of "homosexual, lesbian or bisexual orientation,
conduct, practices or relationships."

2
 Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions.
It prohibits all legislative, executive or judicial action at any level of state or local government
designed to protect the named class, a class we shall refer to as homosexual persons or gays
and lesbians. The amendment reads:
No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation.
Neither the State of Colorado, through any of its branches or departments, nor
any of its agencies, political subdivisions, municipalities or school districts, shall
enact, adopt or enforce any statute, regulation, ordinance or policy whereby
homosexual, lesbian or bisexual orientation, conduct, practices or relationships
shall constitute or otherwise be the basis of or entitle any person or class of
persons to have or claim any minority status, quota preferences, protected
status or claim of discrimination. This Section of the Constitution shall be in all
respects self-executing.

Soon after Amendment 2 was adopted, this litigation to declare its invalidity and enjoin its
enforcement was commenced in the District Court for the City and County of Denver. Among
the plaintiffs (respondents here) were homosexual persons, some of them government
employees. They alleged that enforcement of Amendment 2 would subject them to immediate
and substantial risk of discrimination on the basis of their sexual orientation. Other plaintiffs
(also respondents here) included the three municipalities whose ordinances we have cited and
certain other governmental entities which had acted earlier to protect homosexuals from
discrimination but would be prevented by Amendment 2 from continuing to do so. Although
Governor Romer had been on record opposing the adoption of Amendment 2, he was named in
his official capacity as a defendant, together with the Colorado Attorney General and the State
of Colorado.
***
II
The State's principal argument in defense of Amendment 2 is that it puts gays and
lesbians in the same position as all other persons. So, the State says, the measure does no more
than deny homosexuals special rights. This reading of the amendment's language is implausible.
* * * Sweeping and comprehensive is the change in legal status effected by this law. So much is
evident from the ordinances the Colorado Supreme Court declared would be void by operation
of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to

3
transactions and relations in both the private and governmental spheres. The amendment
withdraws from homosexuals, but no others, specific legal protection from the injuries caused
by discrimination, and it forbids reinstatement of these laws and policies.
The change Amendment 2 works in the legal status of gays and lesbians in the private
sphere is far reaching, both on its own terms and when considered in light of the structure and
operation of modern antidiscrimination laws. * * * [I]t was settled early that the Fourteenth
Amendment did not give Congress a general power to prohibit discrimination in public
accommodations, Civil Rights Cases, (1883). In consequence, most States have chosen to
counter discrimination by enacting detailed statutory schemes.
Colorado's state and municipal laws typify this emerging tradition of statutory
protection and follow a consistent pattern. The laws first enumerate the persons or entities
subject to a duty not to discriminate. The list goes well beyond the entities covered by the
common law. The Boulder ordinance, for example, has a comprehensive definition of entities
deemed places of "public accommodation." They include "any place of business engaged in any
sales to the general public and any place that offers services, facilities, privileges, or advantages
to the general public or that receives financial support through solicitation of the general public
or through governmental subsidy of any kind." Boulder Rev. Code § 12-1-1(j) (1987). The
Denver ordinance is of similar breadth, applying, for example, to hotels, restaurants, hospitals,
dental clinics, theaters, banks, common carriers, travel and insurance agencies, and "shops and
stores dealing with goods or services of any kind."
These statutes and ordinances also depart from the common law by enumerating the
groups or persons within their ambit of protection. Enumeration is the essential device used to
make the duty not to discriminate concrete and to provide guidance for those who must
comply. In following this approach, Colorado's state and local governments have not limited
antidiscrimination laws to groups that have so far been given the protection of heightened
equal protection scrutiny under our cases. See, e. g., J. E. B. v. Alabama ex rel. T. B. (1994) (sex);
Lalli v. Lalli (1978) (illegitimacy); McLaughlin v. Florida (race); Oyama v. California (1948)
(ancestry). Rather, they set forth an extensive catalog of traits which cannot be the basis for
discrimination, including age, military status, marital status, pregnancy, parenthood, custody of

4
a minor child, political affiliation, physical or mental disability of an individual or of his or her
associates-and, in recent times, sexual orientation.
Amendment 2 bars homosexuals from securing protection against the injuries that these
public-accommodations laws address. That in itself is a severe consequence, but there is more.
Amendment 2, in addition, nullifies specific legal protections for this targeted class in all
transactions in housing, sale of real estate, insurance, health and welfare services, private
education, and employment.
Not confined to the private sphere, Amendment 2 also operates to repeal and forbid all
laws or policies providing specific protection for gays or lesbians from discrimination by every
level of Colorado government. The State Supreme Court cited two examples of protections in
the governmental sphere that are now rescinded and may not be reintroduced. The first is
Colorado Executive Order D0035 (1990), which forbids employment discrimination against "'all
state employees, classified and exempt' on the basis of sexual orientation." Also repealed, and
now forbidden, are "various provisions prohibiting discrimination based on sexual orientation
at state colleges." The repeal of these measures and the prohibition against their future
reenactment demonstrate that Amendment 2 has the same force and effect in Colorado's
governmental sector as it does elsewhere and that it applies to policies as well as ordinary
legislation.
Amendment 2's reach may not be limited to specific laws passed for the benefit of gays
and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment
that it deprives gays and lesbians even of the protection of general laws and policies that
prohibit arbitrary discrimination in governmental and private settings. * * * If this consequence
follows from Amendment 2, as its broad language suggests, it would compound the
constitutional difficulties the law creates. * * * [E]ven if, as we doubt, homosexuals could find
some safe harbor in laws of general application, we cannot accept the view that Amendment
2's prohibition on specific legal protections does no more than deprive homosexuals of special
rights. To the contrary, the amendment imposes a special disability upon those persons alone.
Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.
They can obtain specific protection against discrimination only by enlisting the citizenry of

5
Colorado to amend the State Constitution or perhaps, on the State's view, by trying to pass
helpful laws of general applicability. This is so no matter how local or discrete the harm, no
matter how public and widespread the injury. We find nothing special in the protections
Amendment 2 withholds. These are protections taken for granted by most people either
because they already have them or do not need them; these are protections against exclusion
from an almost limitless number of transactions and endeavors that constitute ordinary civic
life in a free society.
III
The Fourteenth Amendment's promise that no person shall be denied the equal
protection of the laws must coexist with the practical necessity that most legislation classifies
for one purpose or another, with resulting disadvantage to various groups or persons. We have
attempted to reconcile the principle with the reality by stating that, if a law neither burdens a
fundamental right nor targets a suspect class, we will uphold the legislative classification so
long as it bears a rational relation to some legitimate end.
Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment
has the peculiar property of imposing a broad and undifferentiated disability on a single named
group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer
breadth is so discontinuous with the reasons offered for it that the amendment seems
inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to
legitimate state interests.
Taking the first point, even in the ordinary equal protection case calling for the most
deferential of standards, we insist on knowing the relation between the classification adopted
and the object to be attained. The search for the link between classification and objective gives
substance to the Equal Protection Clause; it provides guidance and discipline for the legislature,
which is entitled to know what sorts of laws it can pass; and it marks the limits of our own
authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate
government interest, even if the law seems unwise or works to the disadvantage of a particular
group, or if the rationale for it seems tenuous. * * * By requiring that the classification bear a

6
rational relationship to an independent and legitimate legislative end, we ensure that
classifications are not drawn for the purpose of disadvantaging the group burdened by the law.
Amendment 2 confounds this normal process of judicial review. It is at once too narrow
and too broad. It identifies persons by a single trait and then denies them protection across the
board. The resulting disqualification of a class of persons from the right to seek specific
protection from the law is unprecedented in our jurisprudence. The absence of precedent for
Amendment 2 is itself instructive; "[d]iscriminations of an unusual character especially suggest
careful consideration to determine whether they are obnoxious to the constitutional
provision."
It is not within our constitutional tradition to enact laws of this sort. Central both to the
idea of the rule of law and to our own Constitution's guarantee of equal protection is the
principle that government and each of its parts remain open on impartial terms to all who seek
its assistance. " 'Equal protection of the laws is not achieved through indiscriminate imposition
of inequalities.'" Sweatt v. Painter (1950) (quoting Shelley v. Kraemer (1948)). Respect for this
principle explains why laws singling out a certain class of citizens for disfavored legal status or
general hardships are rare. A law declaring that in general it shall be more difficult for one
group of citizens than for all others to seek aid from the government is itself a denial of equal
protection of the laws in the most literal sense. "The guaranty of 'equal protection of the laws is
a pledge of the protection of equal laws.'" Skinner v. Oklahoma ex rel. Williamson (1942)
(quoting Yick Wo v. Hopkins (1886)).
***
The primary rationale the State offers for Amendment 2 is respect for other citizens'
freedom of association, and in particular the liberties of landlords or employers who have
personal or religious objections to homosexuality. Colorado also cites its interest in conserving
resources to fight discrimination against other groups. The breadth of the amendment is so far
removed from these particular justifications that we find it impossible to credit them. We
cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete
objective. It is a status-based enactment divorced from any factual context from which we

7
could discern a relationship to legitimate state interests; it is a classification of persons
undertaken for its own sake, something the Equal Protection Clause does not permit. * * *
We must conclude that Amendment 2 classifies homosexuals not to further a proper
legislative end but to make them unequal to everyone else. This Colorado cannot do. A State
cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal
Protection Clause, and the judgment of the Supreme Court of Colorado is AFFIRMED.

Justice Scalia, with whom Chief Justice Rehnquist and Justice Thomas joined, dissenting:
The Court has mistaken a Kulturkampf for a fit of spite.
The constitutional amendment before us here is not the manifestation of a "'bare ...
desire to harm' " homosexuals, but is rather a modest attempt by seemingly tolerant
Coloradans to preserve traditional sexual mores against the efforts of a politically powerful
minority to revise those mores through use of the laws. That objective, and the means chosen
to achieve it, are not only unimpeachable under any constitutional doctrine hitherto
pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than
judicial holdings); they have been specifically approved by the Congress of the United States
and by this Court.
In holding that homosexuality cannot be singled out for disfavorable treatment, the
Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v.
Hardwick (1986), and places the prestige of this institution behind the proposition that
opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is
precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to
the preferential laws against which the amendment was directed). Since the Constitution of the
United States says nothing about this subject, it is left to be resolved by normal democratic
means, including the democratic adoption of provisions in state constitutions. This Court has no
business imposing upon all Americans the resolution favored by the elite class from which the
Members of this institution are selected, pronouncing that "animosity" toward homosexuality is
evil. I vigorously dissent.
***

8
 II
I turn next to whether there was a legitimate rational basis for the substance of the
constitutional amendment-for the prohibition of special protection for homosexuals.1 It is
unsurprising that the Court avoids discussion of this question, since the answer is so obviously
yes. The case most relevant to the issue before us today is not even mentioned in the Court's
opinion: In Bowers v. Hardwick, we held that the Constitution does not prohibit what virtually
all States had done from the founding of the Republic until very recent years-making
homosexual conduct a crime. That holding is unassailable, except by those who think that the
Constitution changes to suit current fashions. But in any event it is a given in the present case:
Respondents' briefs did not urge overruling Bowers, and at oral argument respondents' counsel
expressly disavowed any intent to seek such overruling. If it is constitutionally permissible for a
State to make homosexual conduct criminal, surely it is constitutionally permissible for a State
to enact other laws merely disfavoring homosexual conduct. (As the Court of Appeals for the
District of Columbia Circuit has aptly put it: "If the Court [in Bowers] was unwilling to object to
state laws that criminalize the behavior that defines the class, it is hardly open ... to conclude
that state sponsored discrimination against the class is invidious. After all, there can hardly be
more palpable discrimination against a class than making the conduct that defines the class
criminal." And a fortiori it is constitutionally permissible for a State to adopt a provision not
even disfavoring homosexual conduct, but merely prohibiting all levels of state government
from bestowing special protections upon homosexual conduct. Respondents (who, unlike the
Court, cannot afford the luxury of ignoring inconvenient precedent) counter Bowers with the
argument that a greater-includes-the-Iesser rationale cannot justify Amendment 2's application
to individuals who do not engage in homosexual acts, but are merely of homosexual
"orientation." Some Courts of Appeals have concluded that, with respect to laws of this sort at
least, that is a distinction without a difference.

1
The Court evidently agrees that "rational basis" -the normal test for compliance with the Equal Protection Clause-
is the governing standard. The trial court rejected respondents' argument that homosexuals constitute a "suspect"
or "quasi-suspect" class, and respondents elected not to appeal that ruling to the Supreme Court of Colorado. See
882 P. 2d 1335, 1341, n. 3 (1994). And the Court implicitly rejects the Supreme Court of Colorado's holding, Evans
v. Romer, 854 P. 2d 1270, 1282 (1993), that Amendment 2 infringes upon a "fundamental right" of "independently
identifiable class[es]" to "participate equally in the political process."

9
 But assuming that, in Amendment 2, a person of homosexual "orientation" is someone
who does not engage in homosexual conduct but merely has a tendency or desire to do so,
Bowers still suffices to establish a rational basis for the provision. If it is rational to criminalize
the conduct, surely it is rational to deny special favor and protection to those with a self-
avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not
involved, homosexual "orientation" is an acceptable stand-in for homosexual conduct. A State
"does not violate the Equal Protection Clause merely because the classifications made by its
laws are imperfect," Dandridge v. Williams (1970). Just as a policy barring the hiring of
methadone users as transit employees does not violate equal protection simply because some
methadone users pose no threat to passenger safety, see New York City Transit Authority v.
Beazer, (1979), and just as a mandatory retirement age of 50 for police officers does not violate
equal protection even though it prematurely ends the careers of many policemen over 50 who
still have the capacity to do the job, see Massachusetts Bd. of Retirement v. Murgia (1976),
Amendment 2 is not constitutionally invalid simply because it could have been drawn more
precisely so as to withdraw special antidiscrimination protections only from those of
homosexual "orientation" who actually engage in homosexual conduct.

III
The foregoing suffices to establish what the Court's failure to cite any case remotely in
point would lead one to suspect: No principle set forth in the Constitution, nor even any
imagined by this Court in the past 200 years, prohibits what Colorado has done here. But the
case for Colorado is much stronger than that. What it has done is not only unprohibited, but
eminently reasonable, with close, congressionally approved precedent in earlier constitutional
practice.
First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving
hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as
though that has been established as un-American. Of course it is our moral heritage that one
should not hate any human being or class of human beings. But I had thought that one could
consider certain conduct reprehensible-murder, for example, or polygamy, or cruelty to

10
animals-and could exhibit even "animus" toward such conduct. Surely that is the only sort of
"animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral
disapproval that produced the centuries-old criminal laws that we held constitutional in
Bowers. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored
status to people who are homosexuals; they can be favored for many reasons-for example,
because they are senior citizens or members of racial minorities. But it prohibits giving them
favored status because of their homosexual conduct-that is, it prohibits favored status for
homosexuality.
But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct,
the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable.
The Court's portrayal of Coloradans as a society fallen victim to pointless, hate-filled "gay-
bashing" is so false as to be comical. Colorado not only is one of the 25 States that have
repealed their antisodomy laws, but was among the first to do so. But the society that
eliminates criminal punishment for homosexual acts does not necessarily abandon the view
that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the
view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives
of citizens.
***
IV
The Court today, announcing that Amendment 2 "defies ... conventional [constitutional]
inquiry," and "confounds [the] normal process of judicial review," employs a constitutional
theory heretofore unknown to frustrate Colorado's reasonable effort to preserve traditional
American moral values. To suggest, for example, that this constitutional amendment springs
from nothing more than "'a bare ... desire to harm a politically unpopular group,'" is nothing
short of insulting. (It is also nothing short of preposterous to call "politically unpopular" a group
which enjoys enormous influence in American media and politics, and which, as the trial court
here noted, though composing no more than 4% of the population had the support of 46% of
the voters on Amendment 2).

11
 When the Court takes sides in the culture wars, it tends to be with the knights rather
than the villeins-and more specifically with the Templars, reflecting the views and values of the
lawyer class from which the Court's Members are drawn. How that class feels about
homosexuality will be evident to anyone who wishes to interview job applicants at virtually any
of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a
Republican; because he is an adulterer; because he went to the wrong prep school or belongs
to the wrong country club; because he eats snails; because he is a womanizer; because she
wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should
wish not to be an associate or partner of an applicant because he disapproves of the applicant's
homosexuality, then he will have violated the pledge which the Association of American Law
Schools requires all its member schools to exact from job interviewers: "assurance of the
employer's willingness" to hire homosexuals. This law-school view of what "prejudices" must be
stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in
the United States Congress, which has been unresponsive to repeated attempts to extend to
homosexuals the protections of federal civil rights laws, and which took the pains to exclude
them specifically from the Americans with Disabilities Act of 1990.
Today's opinion has no foundation in American constitutional law, and barely pretends
to. The people of Colorado have adopted an entirely reasonable provision which does not even
disfavor homosexuals in any substantive sense, but merely denies them preferential treatment.
Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by
a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a
means that Americans have employed before. Striking it down is an act, not of judicial
judgment, but of political will. I dissent.

12
 Lawrence v. Texas
539 U.S. 558 (2003)
Opinion: Kennedy, joined by Stevens, Souter, Ginsburg, Breyer
Concurrence: O’Connor
Dissent: Scalia, joined by Rehnquist, Thomas

BACKGROUND:
In 1986 in Bowers v. Hardwick, the Supreme Court upheld Georgia’s law criminalizing
sodomy (oral or anal sex). As we will read later in the semester, in Bowers v. Hardwick SCOTUS
focused on the theory of substantive due process, rejecting the contention that Georgia’s law
infringed on a “fundamental right,” and finding Georgia’s law therefore constitutional.
Importantly, the Georgia law in Bowers prohibited all sodomy, regardless of the sex or sexual
orientation of the participants.
In Lawrence v. Texas, a gay man challenged Texas’ anti-sodomy law, which criminalized
same-sex sodomy, but not heterosexual sodomy. In Lawrence, the Supreme Court reversed its
decision in Bowers and declared unconstitutional laws that ban same-sex sodomy. The majority
opinion in Lawrence relied primarily on the theory of substantive due process to find that
Texas’ law violated the due process clause of the Constitution; notably, it did not rely on the
Equal Protection Clause. Why do you think the majority chose not to rely on the Equal
Protection Clause?
We will return to the majority opinion in Lawrence when we examine the theory of
substantive due process and its interplay with the Equal Protection Clause. For now, consider
Justice O’Connor’s concurring opinion in Lawrence, in which she opined that Texas’ law was
unconstitutional because it violated the Equal Protection Clause. Along the way to reaching that
conclusion, Justice O’Connor defends the Court’s majority opinion in Bowers, an opinion in
which she had joined nearly two decades earlier. As you read her opinion, consider whether the
majority should have taken the “equal protection approach.” As you read J. O’Connor’s opinion
and the dissent, consider whether when applying the Equal Protection Clause courts should
distinguish between classifications based on who people are rather than what people do.

13
Justice O’Connor, concurring in the judgment:
The Court today overrules Bowers v. Hardwick (1986). I joined Bowers, and do not join
the Court in overruling it. Nevertheless, I agree with the Court that Texas' statute banning
same-sex sodomy is unconstitutional. Rather than relying on the substantive component of the
Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the
Fourteenth Amendment's Equal Protection Clause.
The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction
that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center,
Inc. (1985); see also Plyler v. Doe (1982). Under our rational basis standard of review,
"legislation is presumed to be valid and will be sustained if the classification drawn by the
statute is rationally related to a legitimate state interest." Cleburne; see also Department of
Agriculture v. Moreno; Romer v. Evans; Nordlinger v. Hahn (1992).
Laws such as economic or tax legislation that are scrutinized under rational basis review
normally pass constitutional muster, since "the Constitution presumes that even improvident
decisions will eventually be rectified by the democratic processes." Cleburne; see also Fitzgerald
v. Racing Assn. of Central Iowa; Williamson v. Lee Optical of Okla., Inc. (1955). We have
consistently held, however, that some objectives, such as "a bare . . . desire to harm a politically
unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno. See
also Cleburne; Romer. When a law exhibits such a desire to harm a politically unpopular group,
we have applied a more searching form of rational basis review to strike down such laws under
the Equal Protection Clause.
We have been most likely to apply rational basis review to hold a law unconstitutional
under the Equal Protection Clause where, as here, the challenged legislation inhibits personal
relationships. In Department of Agriculture v. Moreno, for example, we held that a law
preventing those households containing an individual unrelated to any other member of the
household from receiving food stamps violated equal protection because the purpose of the
law was to "'discriminate against hippies.'" The asserted governmental interest in preventing
food stamp fraud was not deemed sufficient to satisfy rational basis review. In Eisenstadt v.

14
Baird (1972), we refused to sanction a law that discriminated between married and unmarried
persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne
v. Cleburne Living Center, we held that it was irrational for a State to require a home for the
mentally disabled to obtain a special use permit when other residences--like fraternity houses
and apartment buildings--did not have to obtain such a permit. And in Romer v. Evans, we
disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single
named group"--specifically, homosexuals.
***
The statute at issue here makes sodomy a crime only if a person "engages in deviate
sexual intercourse with another individual of the same sex." Sodomy between opposite-sex
partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently
based solely on the participants. Those harmed by this law are people who have a same-sex
sexual orientation and thus are more likely to engage in behavior prohibited by § 21.06.
The Texas statute makes homosexuals unequal in the eyes of the law by making
particular conduct--and only that conduct--subject to criminal sanction. It appears that
prosecutions under Texas' sodomy law are rare. This case shows, however, that prosecutions
under § 21.06 do occur. And while the penalty imposed on petitioners in this case was relatively
minor, the consequences of conviction are not. As the [majority] notes, petitioners' convictions,
if upheld, would disqualify them from or restrict their ability to engage in a variety of
professions, including medicine, athletic training, and interior design. Indeed, were petitioners
to move to one of four States, their convictions would require them to register as sex offenders
to local law enforcement.
And the effect of Texas' sodomy law is not just limited to the threat of prosecution or
consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby
making it more difficult for homosexuals to be treated in the same manner as everyone else.
Indeed, Texas itself has previously acknowledged the collateral effects of the law, stipulating in
a prior challenge to this action that the law "legally sanctions discrimination against
[homosexuals] in a variety of ways unrelated to the criminal law," including in the areas of
"employment, family issues, and housing."

15
 Texas attempts to justify its law, and the effects of the law, by arguing that the statute
satisfies rational basis review because it furthers the legitimate governmental interest of the
promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to
homosexual couples did not violate substantive due process. We rejected the argument that no
rational basis existed to justify the law, pointing to the government's interest in promoting
morality. The only question in front of the Court in Bowers was whether the substantive
component of the Due Process Clause protected a right to engage in homosexual sodomy.
Bowers did not hold that moral disapproval of a group is a rational basis under the Equal
Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is not
punished.
This case raises a different issue than Bowers: whether, under the Equal Protection
Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans
homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group,
like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis
review under the Equal Protection Clause. See, e.g., Department of Agriculture v. Moreno;
Romer v. Evans. Indeed, we have never held that moral disapproval, without any other asserted
state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that
discriminates among groups of persons.
Moral disapproval of a group cannot be a legitimate governmental interest under the
Equal Protection Clause because legal classifications must not be "drawn for the purpose of
disadvantaging the group burdened by the law." Texas' invocation of moral disapproval as a
legitimate state interest proves nothing more than Texas' desire to criminalize homosexual
sodomy. But the Equal Protection Clause prevents a State from creating "a classification of
persons undertaken for its own sake." And because Texas so rarely enforces its sodomy law as
applied to private, consensual acts, the law serves more as a statement of dislike and
disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy
law "raise[s] the inevitable inference that the disadvantage imposed is born of animosity
toward the class of persons affected."

16
 Texas argues, however, that the sodomy law does not discriminate against homosexual
persons. Instead, the State maintains that the law discriminates only against homosexual
conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is
conduct that is closely correlated with being homosexual. Under such circumstances, Texas'
sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a
class. "After all, there can hardly be more palpable discrimination against a class than making
the conduct that defines the class criminal." (Scalia, J., dissenting) (internal quotation marks
omitted). When a State makes homosexual conduct criminal, and not "deviate sexual
intercourse" committed by persons of different sexes, "that declaration in and of itself is an
invitation to subject homosexual persons to discrimination both in the public and in the private
spheres."
Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as
a class. In Texas, calling a person a homosexual is slander per se because the word
"homosexual" "impute[s] the commission of a crime." The State has admitted that because of
the sodomy law, being homosexual carries the presumption of being a criminal. See State v.
Morales, 826 S.W. 2d, at 202-203 ("[T]he statute brands lesbians and gay men as criminals and
thereby legally sanctions discrimination against them in a variety of ways unrelated to the
criminal law"). Texas' sodomy law therefore results in discrimination against homosexuals as a
class in an array of areas outside the criminal law. In Romer v. Evans, we refused to sanction a
law that singled out homosexuals "for disfavored legal status." The same is true here. The Equal
Protection Clause "'neither knows nor tolerates classes among citizens.'" Romer (quoting Plessy
v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).
A State can of course assign certain consequences to a violation of its criminal law. But
the State cannot single out one identifiable class of citizens for punishment that does not apply
to everyone else, with moral disapproval as the only asserted state interest for the law. The
Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A legislative
classification that threatens the creation of an underclass . . . cannot be reconciled with" the
Equal Protection Clause.

17
 Whether a sodomy law that is neutral both in effect and application, see Yick Wo v.
Hopkins (1886), would violate the substantive component of the Due Process Clause is an issue
that need not be decided today. I am confident, however, that so long as the Equal Protection
Clause requires a sodomy law to apply equally to the private consensual conduct of
homosexuals and heterosexuals alike, such a law would not long stand in our democratic
society. In the words of Justice Jackson:
The framers of the Constitution knew, and we should not forget today, that
there is no more effective practical guaranty against arbitrary and unreasonable
government than to require that the principles of law which officials would
impose upon a minority be imposed generally. Conversely, nothing opens the
door to arbitrary action so effectively as to allow those officials to pick and
choose only a few to whom they will apply legislation and thus to escape the
political retribution that might be visited upon them if larger numbers were
affected.
Railway Express Agency, Inc. v. New York (1949) (concurring opinion).
That this law as applied to private, consensual conduct is unconstitutional under the
Equal Protection Clause does not mean that other laws distinguishing between heterosexuals
and homosexuals would similarly fail under rational basis review. Texas cannot assert any
legitimate state interest here, such as national security or preserving the traditional institution
of marriage. Unlike the moral disapproval of same-sex relations--the asserted state interest in
this case--other reasons exist to promote the institution of marriage beyond mere moral
disapproval of an excluded group.
A law branding one class of persons as criminal solely based on the State's moral
disapproval of that class and the conduct associated with that class runs contrary to the values
of the Constitution and the Equal Protection Clause, under any standard of review. I therefore
concur in the Court's judgment that Texas' sodomy law banning "deviate sexual intercourse"
between consenting adults of the same sex, but not between consenting adults of different
sexes, is unconstitutional.

Justice Scalia, with whom Chief Justice Rehnquist and Justice Thomas join, dissenting:
***
V

18
 Finally, I turn to petitioners' equal-protection challenge, which no Member of the Court
save JUSTICE O'CONNOR, embraces: On its face § 21.06(a) applies equally to all persons. Men
and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual
intercourse with someone of the same sex. To be sure, § 21.06 does distinguish between the
sexes insofar as concerns the partner with whom the sexual acts are performed: men can
violate the law only with other men, and women only with other women. But this cannot itself
be a denial of equal protection, since it is precisely the same distinction regarding partner that
is drawn in state laws prohibiting marriage with someone of the same sex while permitting
marriage with someone of the opposite sex.
The objection is made, however, that the antimiscegenation laws invalidated in Loving v.
Virginia (1967), similarly were applicable to whites and blacks alike, and only distinguished
between the races insofar as the partner was concerned. In Loving, however, we correctly
applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia
statute was "designed to maintain White Supremacy." A racially discriminatory purpose is
always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no
mention of race. See Washington v. Davis (1976). No purpose to discriminate against men or
women as a class can be gleaned from the Texas law, so rational-basis review applies. That
review is readily satisfied here by the same rational basis that satisfied it in Bowers--society's
belief that certain forms of sexual behavior are "immoral and unacceptable." This is the same
justification that supports many other laws regulating sexual behavior that make a distinction
based upon the identity of the partner--for example, laws against adultery, fornication, and
adult incest, and laws refusing to recognize homosexual marriage.
JUSTICE O'CONNOR argues that the discrimination in this law which must be justified is
not its discrimination with regard to the sex of the partner but its discrimination with regard to
the sexual proclivity of the principal actor ("While it is true that the law applies only to conduct,
the conduct targeted by this law is conduct that is closely correlated with being homosexual.
Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead
directed toward gay persons as a class.") Of course the same could be said of any law. A law
against public nudity targets "the conduct that is closely correlated with being a nudist," and

19
hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that
as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that
denial still does not need to be justified by anything more than a rational basis, which our cases
show is satisfied by the enforcement of traditional notions of sexual morality.
JUSTICE O'CONNOR simply decrees application of "a more searching form of rational
basis review" to the Texas statute. The cases she cites do not recognize such a standard, and
reach their conclusions only after finding, as required by conventional rational-basis analysis,
that no conceivable legitimate state interest supports the classification at issue. See Romer v.
Evans; Cleburne v. Cleburne Living Center, Inc.; Department of Agriculture v. Moreno. Nor does
JUSTICE O'CONNOR explain precisely what her "more searching form" of rational-basis review
consists of. It must at least mean, however, that laws exhibiting "a desire to harm a politically
unpopular group,'" are invalid even though there may be a conceivable rational basis to support
them.
This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex
couples. Justice O'Connor seeks to preserve them by the conclusory statement that "preserving
the traditional institution of marriage" is a legitimate state interest. But "preserving the
traditional institution of marriage" is just a kinder way of describing the State's moral disapproval
of same-sex couples. Texas's interest in § 21.06 could be recast in similarly euphemistic terms:
"preserving the traditional sexual mores of our society." In the jurisprudence JUSTICE O'CONNOR
has seemingly created, judges can validate laws by characterizing them as "preserving the
traditions of society" (good); or invalidate them by characterizing them as "expressing moral
disapproval" (bad).
***
The matters appropriate for this Court's resolution are only three: Texas's prohibition of
sodomy neither infringes a "fundamental right" (which the Court does not dispute), nor is
unsupported by a rational relation to what the Constitution considers a legitimate state interest,
nor denies the equal protection of the laws. I dissent.

20
 The New Equal Protection
Professor Kenji Yoshino
124 Harvard Law Review 747 (2011)
BACKGROUND:

The following is a brief excerpt from a law review article by a well-known law professor
who is generally considered a preeminent expert in the field of constitutional law. Law reviews are
somewhat different than most academic journals in that many are actually academic arguments,
rather than reports of empirically demonstrated data. While the facts presented in law review
articles are usually true (e.g., in “Romer v. Evans the Supreme Court declined to apply heightened
scrutiny”), the analysis, predictions, and conclusions in such articles are often subject to debate
(just like Supreme Court opinions!). Keep that in mind as you read one perspective on modern
equal protection jurisprudence and the implication that going forward equality will be more
protected by parts of the Constitution other than the Equal Protection Clause.
Some questions to ponder as you read:
• Is “pluralism anxiety” really the reason SCOTUS has stopped creating new “suspect
classes? What other reasons might there be?
• If new suspect classifications will not be coming in the future, what does that mean
about the ability of groups to use the Equal Protection Clause to vindicate claims of
inequality?
• The article does a helpful job of illustrating the history and problems with the “tiers
of scrutiny approach” to answering equal protection questions. Is there a better
way?
• Is Professor Yoshino’s characterizations of the cases we read correct?
• Are law review articles really just a massive collection of footnotes?!2

2
“Yes they are!”

21
ARTICLE EXCERPT:

INTRODUCTION

Our nation is increasingly beset with pluralism anxiety. Commentary from both the right 1
and the left2 has expressed the fear that we are fracturing into fiefs that do not speak with
each other. That fear has a basis in fact, as the nation confronts "new" kinds of people
(introduced to the country through immigration) or newly visible people (introduced to the
country by social movements). We are, for instance, arguably the most religiously diverse
country in world history.3 The visibility of women, sexual minorities, and individuals with
disabilities has skyrocketed. The U.S. Census Bureau now acknowledges sixty-three
possible racial identities.4 No end lies in sight.

This pluralism anxiety has transformed civil rights. As the number of groups in the public
limelight has increased, so has anxiety about the group-based identity politics on which
civil rights have historically been based. Many Americans view civil rights as an endless
parade of groups clamoring for state and social solicitude. Even traditional liberals decry
the nation's "balkanization," calling us back to the ideals of integration and assimilation. 5

The jurisprudence of the United States Supreme Court reflects this pluralism anxiety.
Over the past decades, the Court has systematically denied constitutional protection to

1 See, e.g., ALLAN BLOOM, THE CLOSING OF THE AMERICAN MIND (1987) (criticizing the proliferation of
multiculturalism and feminism at universities); PETER D. SALINS, ASSIMILATION, AMERICAN STYLE (1997) (arguing
that America's successful pattern of immigrant assimilation -- one that enables immigrants to retain their ethnic traditions
-- is threatened by both multiculturalism and nativism); Samuel P. Huntington, The Erosion of American National
Interests, FOREIGN AFF., Sept./Oct. 1997, at 28, 33-34 ("The ideologies of multiculturalism and diversity . . . deny the
existence of a common culture in the United States, denounce assimilation, and promote the primacy of racial, ethnic,
and other subnational cultural identities and groupings. They also question a central element in the American Creed by
substituting for the rights of individuals the rights of groups, defined largely in terms of race, ethnicity, gender, and
sexual preference.").

2See, e.g., DAVID A. HOLLINGER, POSTETHNIC AMERICA (2000); ARTHUR M. SCHLESINGER, JR., THE
DISUNITING OF AMERICA (W.W. Norton & Co. rev. & enlarged ed. 1998) (1991).

3 See DIANA L. ECK, A NEW RELIGIOUS AMERICA 4-5 (2001).

4 See ELIZABETH M. GRIECO & RACHEL C. CASSIDY, U.S. CENSUS BUREAU, CENSUS 2000 BRIEF: OVERVIEW
OF RACE AND HISPANIC ORIGIN 3 tbl.1, 4 tbl.2 (2001), available at http://www.census.gov/prod/2001pubs/c2kbr01-
1.pdf.

5 See HOLLINGER, supra note 2; SCHLESINGER, supra note 2.

22
new groups,6 curtailed it for already covered groups,7 and limited Congress's capacity to
protect groups through civil rights legislation.8 The Court has repeatedly justified these
limitations by adverting to pluralism anxiety. These cases signal the end of equality
doctrine as we have known it.

The end of traditional equality jurisprudence, however, should not be conflated with the
end of protection for subordinated groups. Squeezing law is often like squeezing a
balloon. The contents do not escape, but erupt in another area, in a dynamic that
Professor Louis Henkin once dubbed "constitutional displacement." 9 The Court's
commitment to civil rights has not been pressed out, but rather over to collateral doctrines.
Most notably, the Court has moved away from group-based equality claims under the
guarantees of the Fifth10 and Fourteenth Amendments11 to individual liberty claims under
the due process guarantees of the Fifth12 and Fourteenth Amendments.13 This move
reflects what academic commentary has long apprehended -- that constitutional equality
and liberty claims are often intertwined.14 Professor Laurence Tribe uses the phrase "legal

6 See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 435 (1985) (denying heightened scrutiny to
classifications based on mental disability); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313-14 (1976) (per curiam)
(denying heightened scrutiny to age-based classifications); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 40
(1973) (denying heightened scrutiny to classifications based on indigency).

7See, e.g., Washington v. Davis, 426 U.S. 229, 239-42 (1976) (foreclosing disparate impact causes of action under
equal protection guarantees of the Constitution).

8 See, e.g., City of Boerne v. Flores, 521 U.S. 507, 511 (1997) (constraining congressional ability to enact civil rights
legislation pursuant to Section 5 of the Fourteenth Amendment).

9Louis Henkin, Privacy and Autonomy, 74 COLUM. L. REV. 1410, 1417 (1974) (using the phrase to refer to how
enumerated rights did the work of substantive due process in the period when the latter doctrine had been discredited
during the New Deal).

10 TheFifth Amendment contains no equal protection clause. However, the Court has interpreted the Equal Protection
Clause of the Fourteenth Amendment to run against the federal government through the Fifth Amendment's Due
Process Clause. See Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954) (maintaining that the holding of Brown v. Board
of Education, 347 U.S. 483 (1954), was enforceable against schools run by the federal government in the District of
Columbia through the operation of the Fifth Amendment's Due Process Clause). See generally Akhil Reed Amar,
Constitutional Rights in a Federal System: Rethinking Incorporation and Reverse Incorporation, in BENCHMARKS:
GREAT CONSTITUTIONAL CONTROVERSIES IN THE SUPREME COURT 71 (Terry Eastland ed., 1995).
11U.S. CONST. amend. XIV, § 1 ("No State shall . . . deny to any person within its jurisdiction the equal protection of
the laws.").
12 U.S. CONST. amend. V ("No person shall . . . be deprived of life, liberty, or property, without due process of law . . .
.").
13 U.S. CONST. amend. XIV, § 1 ("No State shall . . . deprive any person of life, liberty, or property, without due process
of law . . . .").

14 See,e.g., Rebecca L. Brown, Liberty, the New Equality, 77 N.Y.U. L. REV. 1491, 1541 (2002); William N. Eskridge,
Jr., Destabilizing Due Process and Evolutive Equal Protection, 47 UCLA L. REV. 1183, 1216 (2000); Ruth Bader
Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 380-81 (1985);
Kenneth L. Karst, The Liberties of Equal Citizens: Groups and the Due Process Clause, 55 UCLA L. REV. 99, 106

23
double helix"15 to describe this "Substantive Due Process-Equal Protection synthesis."16
Following Tribe's convention, I refer to such hybrid equality/liberty claims as "dignity"
claims.17 Based on whether the liberty or the equality dimension of the hybrid claim is
ascendant, I call it the "liberty-based" or "equality-based" dignity claim.

***

II. THE EXHAUSTION OF TRADITIONAL GROUP-BASED EQUAL PROTECTION

Constitutional law does not operate independently of broad irreversible developments in

society.56 Just as the War on Terror has transformed our separation of powers
jurisprudence57 and the internet has transformed our First Amendment obscenity
jurisprudence,58 pluralism anxiety has transformed our civil rights jurisprudence. Under
the Supreme Court's own account, pluralism anxiety has pressed the Court away from
traditional group-based identity politics in its equal protection and free exercise

(2007); Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 YALE
L.J. 1694, 1696 (2008) [hereinafter Siegel, Dignity and the Politics of Protection]; Reva Siegel, Reasoning from the
Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 276-
77 (1992) [hereinafter Siegel, Reasoning from the Body]; Laurence H. Tribe, Lawrence v. Texas: The "Fundamental
Right" that Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1897-98 (2004).
15 Tribe,
supra note 14, at 1898 (noting that case law pertaining to due process, properly understood, is a "narrative in
which due process and equal protection, far from having separate missions and entailing different inquiries, are
profoundly interlocked in a legal double helix").

16 Id. at 1902; see id. at 1902-16 (describing the synthesis).

17 Id.at 1898. As the text suggests, I am indebted to Tribe's important essay linking equality and liberty and associating
both terms with the concept of human dignity. For my argument that Tribe's essay was presaged by his litigation
strategy, see Kenji Yoshino, Tribe, 42 TULSA L. REV. 961 (2007). Where this Article diverges from Tribe's work is in
introducing the idea of pluralism anxiety as a force that is shutting down traditional equality jurisprudence and increasing
pressure on the Court to use due process as a vehicle for vindicating equality concerns. In addition, while Tribe focuses
on the difference between a narrow vision of due process and a broader liberty-based dignity jurisprudence (a due
process jurisprudence that internalizes equality concerns), I focus on the difference between traditional equality
jurisprudence and that liberty-based dignity jurisprudence.

56 See BARRY FRIEDMAN, THE WILL OF THE PEOPLE 354 (2009) (arguing that the ostensibly "countermajoritarian"
Court hews closely to public opinion in practice); Robert M. Cover, The Supreme Court, 1982 Term -- Foreword: Nomos
and Narrative, 97 HARV. L. REV. 4, 5-7 (1983) (contending that judicial opinions are embedded in a "nomos," or
normative universe, distinguishable from judicial decisionmaking); Robert C. Post, The Supreme Court, 2002 Term --
Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 8 (2003) (maintaining
that constitutional jurisprudence has a "dialectical relationship" with a broader national culture).

57 See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality opinion) (noting that "[i]f the practical circumstances
of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war," the Court's
understanding of Congress's war powers "may unravel").

58 See,e.g., Ashcroft v. ACLU, 535 U.S. 564, 602-03 (2002) (Stevens, J., dissenting) (observing that the "contemporary
community standards" doctrine of First Amendment obscenity law is on a collision course with dissemination of
materials on the internet, which is, by definition, national in scope).

24
jurisprudence. In past decades, the Court has restricted these guarantees in at least three
ways -- it has limited the number of formally protected classifications, it has curtailed its
solicitude for classes within already protected classifications, and it has restricted
Congress's power to enact antidiscrimination legislation. In justifying these limitations, the
Court has insistently cited pluralism anxiety.

A. Judicial Limitations on Heightened Scrutiny Classifications

Under the equal protection guarantees of the Fifth and Fourteenth Amendments, the
Court has fashioned a framework of tiered scrutiny. That framework distinguishes
between classifications that draw "heightened scrutiny" 59 and classifications that draw
"rational basis review."60 Heightened scrutiny generally results in the invalidation of state
action.61 In contrast, rational basis review generally results in the validation of state
action.62 The words "scrutiny" and "review" suggest an examination rather than a result.
Yet in this jurisprudence, looks can kill.

59 I use "heightened scrutiny" to encompass both strict and intermediate scrutiny.

60 See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-1 to 16-2, at 401-04, § 16-6, at 413, § 16-32
to 16-33, at 518-28 (2d ed. 1988).

61 The conventional academic wisdom has been that strict scrutiny is "fatal in fact." See Gerald Gunther, The Supreme
Court, 1971 Term -- Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal
Protection, 86 HARV. L. REV. 1, 8 (1972) (describing strict scrutiny as "fatal in fact"); see also LAURENCE H. TRIBE,
AMERICAN CONSTITUTIONAL LAW § 16-30, at 1089 (1st ed. 1978) (describing strict scrutiny as a "virtual death-
blow"). Intermediate scrutiny is quite close to strict scrutiny, especially after the case of United States v. Virginia, 518
U.S. 515 (1996). See Cass R. Sunstein, The Supreme Court, 1995 Term -- Foreword: Leaving Things Undecided, 110
HARV. L. REV. 4, 75 (1996) (observing that intermediate scrutiny even before Virginia "operated quite strictly 'in fact'").
The Supreme Court has reminded us that state action can survive both forms of scrutiny. See, e.g., Grutter v. Bollinger,
539 U.S. 306, 343 (2003) (upholding race-based affirmative action program under strict scrutiny); Nguyen v. INS, 533
U.S. 53, 73 (2001) (upholding sex-specific naturalization law under intermediate scrutiny). Such cases, however, remain
the exceptions that prove the rule of general invalidation.

62 See TRIBE, supra note 60, § 16-2, at 1442-43 ("The traditional deference both to legislative purpose and to legislative
selections among means continues . . . to make the rationality requirement largely equivalent to a strong presumption
of constitutionality.").

25
The Supreme Court has formally accorded heightened scrutiny to classifications based
on five characteristics -- race,63 national origin,64 alienage,65 sex,66 and nonmarital
parentage.67 All classifications based on other characteristics -- including age,68
disability,69 and sexual orientation70 -- currently receive rational basis review. Litigants still
argue that new classifications should receive heightened scrutiny. 71 Yet these attempts

63 See Loving v. Virginia, 388 U.S. 1, 11 (1967).

64See Oyama v. California, 332 U.S. 633, 645-46 (1948) (subjecting a land-transfer statute that discriminated on the
basis of national origin to heightened scrutiny). The application of heightened scrutiny to national origin-based
classifications dates back to Korematsu v. United States, 323 U.S. 214 (1944), which subjected legislation and an
executive order excluding individuals of Japanese ancestry from the U.S. West Coast to the "most rigid scrutiny." Id. at
215-16.

65 See Graham v. Richardson, 403 U.S. 365, 372 (1971) (subjecting legislation that conditioned welfare benefits on
citizenship to heightened scrutiny). The strict scrutiny granted to classifications based on alienage is subject to two
qualifications. First, this level of scrutiny does not apply to federal alienage classifications. See, e.g., Mathews v. Diaz,
426 U.S. 67, 81-83, 87 (1976) (holding that, because the Constitution grants Congress authority over issues of alienage,
congressional use of the alienage classification draws only rational basis review). Second, even with respect to state
uses of the alienage classification, strict scrutiny does not apply when core governmental functions are at issue. See,
e.g., Foley v. Connelie, 435 U.S. 291, 297, 299-300 (1978) (upholding New York requirement that police officers be
citizens on the ground that policing is "one of the basic functions of government," id. at 297).

66 SeeVirginia, 518 U.S. at 530-31 (subjecting gender-based discrimination in education to intermediate scrutiny, which
the Court took to require an "exceedingly persuasive justification" on the part of the state, id. at 530 (quoting United
States v. Virginia, 52 F.3d 90, 92 (4th Cir. 1995) (internal quotation marks omitted)); Craig v. Boren, 429 U.S. 190, 204
(1976) (subjecting gender-based discrimination in a statute regulating the sale of alcohol to intermediate scrutiny).

67See Trimble v. Gordon, 430 U.S. 762, 766-67, 769 (1977) (applying heightened scrutiny to a statute that permitted
children born in wedlock, but not children born out of wedlock, to inherit from their intestate fathers).

68 See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313-14 (1976) (per curiam) (holding that a mandatory retirement age
of fifty for police officers was subject to rational basis review because it implicated neither a fundamental right nor a
suspect class).

69 See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 435 (1985).

70See Romer v. Evans, 517 U.S. 620, 633 (1996) (avoiding the question of whether a classification based on sexual
orientation merits heightened scrutiny by finding that a Colorado constitutional amendment repealing ordinances
prohibiting discrimination based on sexual orientation violated equal protection "in the most literal sense").

71See, e.g., Brief of the National Lesbian & Gay Law Ass'n et al. as Amici Curiae in Support of Petitioners at 3-4,
Lawrence v. Texas, 539 U.S. 558 (2003) (No. 02-102), 2003 WL 152348, at *3-4 (arguing that classification based on
sexual orientation should draw heightened scrutiny); Brief of Appellant at 40-46, United States v. Watson, 483 F.3d 828
(D.C. Cir. 2007) (No. 04-3090), 2006 WL 338618 (arguing for application of heightened scrutiny to peremptory
challenges of blind jurors); Appellant's Reply Brief at 2, Hedgepeth ex rel. Hedgepeth v. Washington Metro. Area Transit
Auth., 386 F.3d 1148 (D.C. Cir. 2004) (No. 03-7149), 2004 WL 1536069, at *2 (arguing that youth as a class should be
accorded intermediate scrutiny); Brief of Amici Curiae American College of Obstetricians & Gynocologists [sic] et al. in
Support of Plaintiffs-Appellees at 35-36, Lewis v. Thompson, 252 F.3d 567 (2d Cir. 2001) (No. 00-6104), 2000 WL
33978992, at *35-36 (arguing for heightened scrutiny with respect to the Secretary of the Department of Health and
Human Services' interpretation of legislation denying prenatal care to undocumented women on the grounds that it
harms a class of children based on their mothers' status).

26
have an increasingly antiquated air in federal constitutional litigation, as the last
classification accorded heightened scrutiny by the Supreme Court was that based on
nonmarital parentage in 1977.72 At least with respect to federal equal protection
jurisprudence, this canon has closed.73

The closure of the heightened scrutiny canon can be fairly attributed to pluralism anxiety.
As early as 1973, then-Justice Rehnquist voiced qualms about the Court's heightened
scrutiny jurisprudence. Dissenting in a case that granted such scrutiny to alienage
classifications, he wrote:
Our society, consisting of over 200 million individuals of multitudinous origins,
customs, tongues, beliefs, and cultures is, to say the least, diverse. It would hardly
take extraordinary ingenuity for a lawyer to find "insular and discrete" minorities at
every turn in the road. Yet, unless the Court can precisely define and constitutionally
justify both the terms and analysis it uses, these decisions today stand for the
proposition that the Court can choose a "minority" it "feels" deserves "solicitude" and
thereafter prohibit the States from classifying that "minority" different from the

72 Trimble, 430 U.S. at 766-76.

73 Iemphasize the federal constitutional jurisprudence because there is of course a distinct body of state constitutional
jurisprudence. Almost every state has an equal protection clause or its equivalent, most of which track the wording of
the Fourteenth Amendment. Stanley H. Friedelbaum, State Equal Protection: Its Diverse Guises and Effects, 66 ALB.
L. REV. 599, 604 (2003). In some cases, state courts interpreting state constitutions have gone further in their grants
of heightened scrutiny than have federal courts interpreting the United States Constitution. For instance, classifications
based on mental disability have been accorded intermediate scrutiny under the New Mexico Constitution's equal
protection guarantee. See Breen v. Carlsbad Mun. Sch., 120 P.3d 413, 422-23 (N.M. 2005). Connecticut also grants
disability-based classifications strict scrutiny pursuant to a specific provision of its constitution. See CONN. CONST.
art. 1, § 20 ("No person shall be denied the equal protection of the law . . . because of religion, race, color, ancestry,
national origin, sex or physical or mental disability.") (amended 1984). Sexual orientation classifications have received
strict scrutiny under California jurisprudence, see In re Marriage Cases, 183 P.3d 384, 441-43, 452 (Cal. 2008)
(according strict scrutiny to orientation-based classifications in legalizing same-sex marriage under the California
Constitution), and quasi-suspect scrutiny under Connecticut jurisprudence, see Kerrigan v. Comm'r of Pub. Health, 957
A.2d 407, 412 (Conn. 2008) (according quasi-suspect scrutiny to orientation-based classifications in legalizing same-
sex marriage under the Connecticut Constitution). Tennessee jurisprudence has referred to age as a suspect class.
See Nat'l Gas Distribs. v. Sevier Cnty. Util. Dist., 7 S.W.3d 41, 45 (Tenn. Ct. App. 1999) ("Equal protection requires
strict scrutiny of a legislative classification . . . when the classification . . . operates to the peculiar disadvantage of a
suspect class (e.g., age or race)." (quoting State v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994)) (internal quotation
marks omitted)). As the case did not involve an age-based classification, however, the case's description of age as a
suspect class must be regarded as dictum.

Notwithstanding the instances above, state courts appear not to have built far above the Supreme Court's federal equal
protection jurisprudence. As one commentator has observed: "In most areas, state courts have been inclined to parallel
the Fourteenth Amendment paradigm with minor modifications introduced along the way." Friedelbaum, supra, at 629.
My main reason for bracketing state equal protection jurisprudence is simply one of scope. However, I would be remiss
if I did not also note that the slack created by the federal equal protection jurisprudence has not been fully picked up
by the states' equal protection jurisprudence.

27
 "majority." I cannot find, and the Court does not cite, any constitutional authority for
such a "ward of the Court" approach to equal protection.74

Justice Rehnquist's allusion to "'insular and discrete' minorities" refers to the famous
footnote four of United States v. Carolene Products Co.75 Viewed by many as the
fountainhead of the heightened scrutiny framework for minority groups, 76 that footnote
stated that "prejudice against discrete and insular minorities" might "call for a
correspondingly more searching judicial inquiry"77 because such minorities would not be
able to protect themselves in the political process.78 Justice Rehnquist's criticism of this
formulation was that, in a diverse society, such a subjective standard would lead to
arbitrary interventions on the part of the Court.

In 1985, the Court adopted Justice Rehnquist's view. In City of Cleburne v. Cleburne
Living Center, Inc.,79 the Court confronted a case in which a zoning ordinance prevented
homes for the mentally retarded from being built in certain areas.80 The Court declined to
grant classifications discriminating against individuals with mental retardation heightened
scrutiny.81 Justice White, writing for the majority, reasoned as follows:
[I]f the large and amorphous class of the mentally retarded were deemed quasi-
suspect for the reasons given by the Court of Appeals, it would be difficult to find a
principled way to distinguish a variety of other groups who have perhaps immutable
disabilities setting them off from others, who cannot themselves mandate the desired
legislative responses, and who can claim some degree of prejudice from at least part
of the public at large. One need mention in this respect only the aging, the disabled,
the mentally ill, and the infirm. We are reluctant to set out on that course, and we
decline to do so.82
Justice White not only invoked pluralism anxiety -- the "variety of other groups"
represented by "the aging, the disabled, the mentally ill, and the infirm" -- but also signaled

74 Sugarman v. Dougall, 413 U.S. 634, 657 (1973) (Rehnquist, J., dissenting).
75 304 U.S. 144, 152 n.4 (1938).

76 See, e.g., GERALD GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 542 (10th ed. 1980)
(attributing the tiered structure of judicial review under the Equal Protection Clause to this note's "pervasive influence").
See generally Milner S. Ball, Judicial Protection of Powerless Minorities, 59 IOWA L. REV. 1059 (1974); Robert M.
Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 YALE L.J. 1287 (1982).
77 Carolene Products Co., 304 U.S. at 153 n.4.
78 Id. at 152 n.4.
79 473 U.S. 432 (1985).

80 See id. at 436.

81 Id. at 435.
82 Id. at 445-46.

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that the courts, which must provide a "principled way" of making distinctions among such
groups, might be particularly susceptible to that anxiety.

The claim that the canon has closed on heightened scrutiny classifications must be
tempered by acknowledging the Court's use of a more aggressive form of rational basis
review. While the Court has not made this distinction, academic commentary has correctly
observed that "rational basis review" takes two forms: ordinary rational basis review and
"rational basis with bite review."83

Historically, rational basis review has operated as a residual category -- that is, if a
classification does not receive heightened scrutiny, it receives rational basis review. The
residual character of rational basis review explains its lenity. After all, most laws create
distinctions between groups -- between ophthalmologists and opticians,84 say, or between
dairy farmers and purveyors of "filled milk."85 If every legislative distinction received active
scrutiny from a court, then the courts would indeed sit as countermajoritarian
"superlegislatures." The courts simply cannot perform the Sisyphean task of
independently testing the fairness of every governmental distinction. Justice Holmes
gestured toward this reality when he called equal protection arguments "the usual last
resort of constitutional arguments."86 As he put it, "the law does all that is needed when it
does all that it can."87

As a doctrinal matter, rational basis review requires only that state action be "rationally
related to furthering a legitimate state interest."88 Even that deferential formulation fails
adequately to capture the lenity of ordinary rational basis review. In post-1937 cases, the
Court stated it would uphold state action if it could imagine any possible rationale for the
state's action. 89 In other words, even if the legislature had provided no rationale or an

83See generally Gayle Lynn Pettinga, Note, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62
IND. L.J. 779 (1987); Jeremy B. Smith, Note, The Flaws of Rational Basis with Bite: Why the Supreme Court Should
Acknowledge Its Application of Heightened Scrutiny to Classifications Based on Sexual Orientation, 73 FORDHAM L.
REV. 2769 (2005).

84 See Williamson v. Lee Optical, Inc., 348 U.S. 483, 486 (1955).

85 See United States v. Carolene Prods. Co., 304 U.S. 144 (1938).
86Buck v. Bell, 274 U.S. 200, 208 (1927). Holmes, who was writing before the Court inaugurated the tiered system of
scrutiny, was speaking of the equal protection jurisprudence in general, not the rational basis with bite standard in
particular. The limited number of heightened scrutiny classifications means his comment may no longer apply to the
equal protection jurisprudence as a whole. However, the statement still captures the impracticability of according robust
review to state action drawing only rational basis review.

87 Id.

88 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976) (per curiam).

89See, e.g., Williamson, 348 U.S. at 487 (hypothesizing rationales that a state legislature "might have" or "may have"
had in enacting a statute to validate provisions distinguishing between ophthalmologists and optometrists on the one
hand and opticians on the other); Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 110 (1949) (hypothesizing

29
inadequate rationale, the state action would be upheld so long as the Court could supply
one. Because judges could imagine many things, ordinary rational basis review was
tantamount to a free pass for legislation.90

In some cases, however, the Court has invalidated legislation under rational basis review,
suggesting a newer rational basis with bite standard. In the 1973 case of United States
Department of Agriculture v. Moreno,91 the Court struck down legislation involving
"hippies," stating that laws evincing a "bare congressional desire to harm a politically
unpopular group" would not pass rational basis review.92 This analysis fastened on the
word "rational," holding that legislation motivated by animus, by nature against reason,
cannot survive rational basis review. A dozen years later, the Cleburne Court itself
deployed such review to strike down a zoning ordinance that fenced out individuals with
mental disabilities.93 In the 1996 case of Romer v. Evans,94 the Court invalidated an
antigay state constitutional amendment, quoting the Moreno language.95 Such
applications depart from the usual deference associated with rational basis review. 96 For
this reason, commentators have correctly discerned a new rational basis with bite
standard in such cases.97

Yet the importance of this rational basis with bite standard should not be exaggerated.
Rational basis with bite review is not equivalent to formal heightened scrutiny.
Subsequent lower courts have not understood Cleburne to require the application of
anything more than traditional rational basis review to disability-based classifications. 98
Nor have they interpreted Romer to bar other governmental discrimination on the basis

rationales that a state legislature might have had and stating that "[i]t would take a degree of omniscience which we
lack to say" such a rationale was not the reason local authorities enacted the regulation).

90For a canonical critique of this approach, see Gunther, supra note 61, who maintains that the Court should be "less
willing to supply justifying rationales by exercising its imagination." Id. at 21.
91 413 U.S. 528 (1973).
92 Id. at 534.
93 City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 449-50 (1985).
94 517 U.S. 620 (1996).
95 Id.
at 634-35 ("[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born
of animosity toward the class of persons affected. '[I]f the constitutional conception of "equal protection of the laws"
means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot
constitute a legitimate government interest.'" (second and third alterations in original) (quoting Moreno, 413 U.S. at
534)).

96 See, e.g., Williamson v. Lee Optical, Inc., 348 U.S. 483, 487-88 (1955).

97 See sources cited supra note 83.

98See, e.g., Frazier v. City of Grand Ledge, 135 F. Supp. 2d 845, 852 (W.D. Mich. 2001) (distinguishing Cleburne to
uphold a state statute burdening individuals with disabilities); DeSisto Coll., Inc. v. Town of Howey-in-the-Hills, 706 F.
Supp. 1479, 1503 (M.D. Fla. 1989) (distinguishing Cleburne in upholding a failure to accommodate learning-disabled
students under rational basis review).

30
of sexual orientation.99 The Court has also reaffirmed the salience of the formal distinction
between heightened scrutiny and rational basis review under its section 5 jurisprudence,
implying that Congress has more power to legislate with respect to classifications drawing
heightened scrutiny than with respect to classifications drawing only rational basis
review.100 The inability of new groups to have discrimination against them receive formal
heightened scrutiny has profoundly negative effects on their equal protection claims.

Despite its thirty-year hiatus, it is certainly possible that the Court may give formal
heightened scrutiny to another classification or two in addition to the five that currently
benefit from this form of judicial review. The fact that state courts have given legislation
burdening gays strict 101 or "quasi-suspect"102 scrutiny under their state constitutions, for
instance, may inspire federal courts to do the same. 103 But the Court can never give
heightened scrutiny to classifications of, say, twenty groups without diluting the meaning
of that scrutiny. So the Court has every incentive to fall back -- sooner or later -- to the
gestalt analysis represented by the rational basis with bite standard. This approach has
the virtue of candor: it effectively admits that there is no principled test -- in the sense of
a mathematical formula -- to find groups deserving judicial protection.104

99 See, e.g., Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 864-66 (8th Cir. 2006) (distinguishing Romer in upholding
a state constitutional ban on same-sex marriage under rational basis review); Lofton v. Sec'y of the Dep't of Children &
Family Servs., 358 F.3d 804, 826-27 (11th Cir. 2004) (distinguishing Romer in upholding a Florida statute prohibiting
adoption by homosexuals under rational basis review); Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati,
128 F.3d 289, 297 (6th Cir. 1997) (distinguishing Romer in upholding a city charter amendment denying protection to
gays); Shahar v. Bowers, 114 F.3d 1097, 1110 (11th Cir. 1997) (distinguishing Romer in upholding the termination of
a lesbian attorney for having engaged in a same-sex commitment ceremony under rational basis review).

100Compare Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 736-37 (2003) (permitting Congress more leeway to
legislate on matters of sex discrimination because sex is a heightened scrutiny classification), with Bd. of Trs. of Univ.
of Ala. v. Garrett, 531 U.S. 356, 366-68 (2001) (permitting Congress less leeway to legislate on matters of disability
discrimination because disability is not a heightened scrutiny classification).

101 Inre Marriage Cases, 183 P.3d 384, 441-42 (Cal. 2008) (according strict scrutiny to orientation-based classifications
in legalizing same-sex marriage under the California Constitution). This case was superseded by a constitutional
amendment that withdrew the right to marry from same-sex couples. See CAL. CONST. art I, § 7.5. However, the
amendment does not necessarily supersede the California Supreme Court's determination that sexual orientation
classifications draw strict scrutiny under the California Constitution.
102 Kerrigan
v. Comm'r of Pub. Health, 957 A.2d 407, 412 (Conn. 2008) (according quasi-suspect scrutiny to orientation-
based classifications in legalizing same-sex marriage under Connecticut Constitution).

103As of this writing, many progressives have their eyes on two pending cases relating to same-sex marriage. One
struck down a state constitutional amendment that bans same-sex marriage on both due process and equal protection
grounds. See Perry v. Schwarzenegger, No. C 09-2292 VRW, 2010 WL 3025614, at *1 (N.D. Cal. Aug. 4, 2010).
Although the court stated that classifications of gays met the criteria for heightened scrutiny, it struck down the state
constitutional provision under rational basis review, meaning that the heightened scrutiny determination is dictum. Id.
at *72. The other case struck down a portion of the federal Defense of Marriage Act on equal protection grounds
applying only rational basis review. See Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 376-77 (D. Mass. 2010).

104The two main tests that the Supreme Court has formulated suffer from serious flaws. First, the Carolene Products
formulation of "discrete and insular minorities," United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938),

31
 Yet even the Court's rational basis with bite protection will ground out at a certain point.
Rational basis with bite depends on the idea that governmental "animus" alone is never
enough to sustain legislation. But because one person's prejudice is another's principle,
this form of rational basis review will still require the Court to privilege some groups over
others. The Court will find the task of picking and choosing among groups to be
increasingly distasteful as the nation becomes ever more conscious of its diversity.
Pluralism anxiety has operated, and will continue to operate, as a serious obstacle to the
recognition of classification-specific judicial protections (whether through heightened
scrutiny or rational basis with bite review).

***

has often been seen as the fountainhead for heightened scrutiny. See GUNTHER, supra note 76, at 542; Ball, supra
note 76, at 1062 (noting the pervasiveness of the "discrete and insular" formulation). However, as Professor Bruce
Ackerman pointed out in a seminal article, it may be that "anonymous and diffuse" groups suffer from more political
debilities than do "discrete and insular" groups. Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV.
713, 724 (1985).

Another Supreme Court test asks whether the group has been subjected to historical discrimination, is politically
powerless, and is marked by "obvious, immutable, or distinguishing characteristics." Bowen v. Gilliard, 483 U.S. 587,
602 (1987) (quoting Lyng v. Castillo, 477 U.S. 635, 638 (1986)). The historical discrimination prong of this test seems
unimpeachable. However, the question of how to define political powerlessness is vexing. As an initial matter, one must
have an extraordinary amount of political power to be deemed politically powerless by the courts. In grappling with the
challenge of how to define political powerlessness, the Justices have cycled among various tests that have led to
inconsistent results. In Frontiero v. Richardson, 411 U.S. 677 (1973), a plurality of the Court deemed women to be
politically powerless despite their numerosity in the polity because they were "vastly underrepresented in this Nation's
decisionmaking councils." Id. at 686 n.17 (plurality opinion). Four years later, a majority of the Court observed that the
fact that Mexican Americans held a "governing majority" did not dispel the presumption of intentional discrimination
established by numerical underrepresentation. Castaneda v. Partida, 430 U.S. 482, 499 (1977). Under that
"underrepresentation" test, individuals with disabilities would be politically powerless. So in denying heightened scrutiny
to classifications of individuals with mental disabilities, the Court shifted to a different metric of political powerlessness,
observing that the test was whether a group was able to "attract the attention of lawmakers." City of Cleburne v.
Cleburne Living Ctr., Inc., 473 U.S. 432, 445 (1985). But under that test, racial minorities, who had a great deal of
legislation passed to protect them long before race-based classifications were granted heightened scrutiny in the mid-
1900s, should not have received suspect-class status. Nor should women. At the time Frontiero was decided, the nation
not only had a great deal of ordinary legislation protecting women, but also was close to ratifying the Equal Rights
Amendment. See Frontiero, 411 U.S. at 692 (Powell, J., concurring in the judgment) (arguing that the Court should not
grant suspect class status to women when "state legislatures, functioning within the traditional democratic process, are
debating the proposed Amendment"). Finally, Bowen's emphasis on "obvious, immutable, or distinguishing
characteristics" is misplaced. I and others have contested the idea that visibility or immutability should be a prerequisite
to judicial protection. After all, many forms of passing or conversion are precisely an effect of discrimination rather than
an escape from it. See Kenji Yoshino, Covering, 111 YALE L.J. 769, 772 (2002); see also Janet E. Halley, Sexual
Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503, 507-16
(1994) (critiquing immutability as a salient factor for heightened scrutiny). See generally Kenji Yoshino, Assimilationist
Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell," 108 YALE L.J. 485 (1998)
(arguing that the visibility and immutability requirements create an "assimilationist bias" in equal protection
jurisprudence).

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