Gay Rights, Equal Protection, and the Classification-Framing Quandary

Peter Nicolas

University of Washington School of Law

March 27, 2013

George Mason Law Review, Forthcoming
University of Washington School of Law Research Paper No. 2013-07

A threshold requirement for bringing an equal protection claim is a showing that a law intentionally discriminates against a given class of persons. This threshold showing is satisfied when a law — on its face — discriminates against a given class of persons. However, when a law is facially neutral, mere evidence that it has a discriminatory effect on a given class of persons is typically insufficient to satisfy this threshold requirement. Absent evidence that a facially neutral law was either administered in a discriminatory manner or motivated by a discriminatory purpose, there is no discrimination within the meaning of the equal protection clause and thus the claim fails at the threshold.

As legislators have moved away from enacting laws that facially discriminate on the basis of sexual orientation and instead — by regulating “same-sex” couples and conduct — enact laws that can arguably be characterized as facially neutral, gay and lesbian plaintiffs challenging such laws have been confronted with court rulings that the laws fail the threshold equal protection requirement of purposefully discriminating against a given class of persons. Other recently enacted laws are arguably even more removed from being facially discriminatory in that they do not even reference same-sex couples or conduct directly, but only by cross-reference to other laws.

In addition, courts have rejected efforts by gay and lesbian plaintiffs to characterize these laws as discriminating on the basis of sex, invoking the “equal application” theory to conclude that no sex discrimination exists because men and women are equally prevented from engaging in same-sex conduct.

In this article, I demonstrate that although these laws raise complex framing issues, they can fairly be characterized as purposefully discriminating on the bases of sexual orientation and sex, as well as against same-sex couples, and that any of these three characterizations should suffice to get these claims past the threshold inquiry.

I ultimately conclude that the Supreme Court — whose recent decisions involving sexual orientation suggest a convergence of status and conduct for equal protection purposes — should treat such claims as facially discriminating on the basis of sexual orientation.

Number of Pages in PDF File: 61

Keywords: gay, same-sex, GLBT, LGBT, marriage, equal protection, race, sex, sexual orientation, homosexual, queer, queer theory, lesbian, DOMA, Defense of Marriage Act, equal protection, 14th Amendment, Fourteenth Amendment, discriminatory intent, discriminatory impact, discriminatory effect

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Date posted: March 29, 2013 ; Last revised: April 4, 2013

Suggested Citation

Nicolas, Peter, Gay Rights, Equal Protection, and the Classification-Framing Quandary (March 27, 2013). George Mason Law Review, Forthcoming; University of Washington School of Law Research Paper No. 2013-07. Available at SSRN: http://ssrn.com/abstract=2240446

Contact Information

Peter Nicolas (Contact Author)
University of Washington School of Law ( email )
William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States
HOME PAGE: http://www.law.washington.edu/faculty/Nicolas/

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