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The Usual Suspect Classifications: Criminals, Aliens and the Future of Same-Sex Marriage

56 Pages Posted: 11 Mar 2008 Last revised: 6 Mar 2011

Michael A. Helfand

Pepperdine University School of Law

Date Written: May 10, 2009


In this Article, I argue for a new understanding of the immutability factor employed by courts in determining which classifications ought to receive suspect status under the Equal Protection Clause. Drawing on the process-based foundations of the Equal Protection Clause, this new understanding defines immutable traits not as traits that cannot be changed, but as trait that were, in the words of the Supreme Court in Frontiero, mere “accidents of birth.” In contrast, courts and scholars typically center the immutability inquiry on an individual’s technical ability to exit a particular class, which has led to inconsistencies in applying equal protection doctrine to criminality, alienage and sexual preference classifications.

Understanding immutability in this way is vital given the ongoing litigation surrounding same-sex marriage. Courts, in addressing whether sexual preference can constitute a suspect classification, all-too often get bogged down in biological studies or psychological profiling in attempt to determine whether sexual preference is something that can be changed. In doing so, courts often import definitions of immutability from other doctrinal contexts, like asylum or Title VII law. Doing so simply confuses the type of inquiry underlying the principles driving the Supreme Court’s process-based approach to the Equal Protection Clause.

Keywords: equal protection, immutability, alienage, suspect classifications

Suggested Citation

Helfand, Michael A., The Usual Suspect Classifications: Criminals, Aliens and the Future of Same-Sex Marriage (May 10, 2009). University of Pennsylvania Journal of Constitutional Law, Vol. 12, p. 1. Available at SSRN:

Michael Helfand (Contact Author)

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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