AbstractWe stand at a crossroads in equal protection doctrine. Over the last 20 years, the Supreme Court has decided a series of cases in which it has constitutionally invalidated anti-gay discrimination. In each of these cases, the Court has declined to specify its standard of review, and has deployed an approach that is not easily classifiable within its traditional tiered standards of review. Nevertheless, as such decisions have accumulated, it has become clear that they are not simply aberrational deviations from deferential rational basis review; but rather, that they mark some form of more systematic development in the Court’s equal protection doctrine.
The precise nature of the development marked by the gay rights cases, however, remains far from clear. On the one hand, such cases could be understood simply as precursors to a turn to formal heightened scrutiny for sexual orientation-based classifications: as a mark of the Court’s special solicitude for challenges to discrimination targeting lesbians and gay men.But such cases can also be understood very differently: as marking broader shifts in the Court’s equal protection doctrine, away from the Court’s traditional “tiered” approach and towards a more flexible and robust vision of equal protection review.
This bifurcation of possibilities bears remarkable similarities to another historical moment in the Court’s equal protection doctrine: the dilemma that the Court faced in the mid-1970s regarding how to characterize its early precedents striking down sex and illegitimacy classifications. And yet relatively little scholarship has explored these interconnections, and their potential salience for this contemporary moment in equal protection review. This essay seeks to recover this mid-1970s history, and to draw on it in considering the possibilities and risks that may attach to the particular juncture at which we find ourselves vis-à-vis the Court’s equal protection doctrine.
What such an inquiry suggests is that the dominant modern understanding of the Court’s minimum tier (rational basis) review — as a shallow and empty form of review, devoid of meaningful scrutiny — is, to some extent, a byproduct of our loss of historical memory. Just like the contemporary gay rights cases, the early sex and illegitimacy cases were not, at the time they were decided, applications of formally heightened review. It was only later — as mid-tier scrutiny became formally institutionalized — that such cases were reimagined as “[h]eightened scrutiny under a deferential, old equal protection guise.”
When viewed together with the Court’s contemporary gay rights cases (as well as other, often overlooked applications of minimum tier review), what this history suggests is that our canonical understanding of minimum tier review is by no means the only vision of equal protection review possible. Rather, taking account of the full sweep of the Court’s minimum tier jurisprudence, it is clear that the Court often applies greater than minimal scrutiny where group or rights-based concerns exist. Retaining this historical memory — regardless of the ultimate outcome of the Court’s gay rights jurisprudence — may help ensure that all groups have access to a more robust and meaningful form of equal protection review.
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