Unequal Protection

83 Pages Posted: 6 Aug 2014 Last revised: 27 Feb 2016

Date Written: February 8, 2016


During the last thirty years, the Supreme Court has steadily diminished the vigor of the Equal Protection Clause. It has turned away people of color who protest systems such as racialized mass incarceration because their oppression does not take the form of a “racial classification.” It has diluted the protections of intermediate scrutiny in gender discrimination and abortion cases. And it has turned its back on groups who once benefitted from “animus” review, including people with disabilities and poor people. Meanwhile, the only site of vitality in equal protection jurisprudence is the claims of lesbian, gay, bisexual, and transgender (LGBT) individuals. Yet the Court, writing opinions that are rarely in conversation with one another, has made no effort to justify this growing divide. I call attention to this reordered equal protection landscape, which contrasts sharply with the conventional understanding of equal protection tiers of scrutiny.

Specifically, I identify three manifestations of LGBT exceptionalism, advantages that LGBT people (especially gays and lesbians) enjoy compared to virtually every other civil rights constituency: (1) the Court has rigidly used the concept of a “classification” as a gatekeeping device, but it has ignored this requirement in sexual orientation cases; (2) LGBT people can invoke animus, a standard that emerged from cases brought by people of color, poor people, and people with disabilities but that the Court no longer recognizes in such cases; and (3) sexual orientation cases leave open important questions, including the legal standard that would apply to remedial policies based on sexual orientation — quite unlike the Court’s adverse resolution of these questions in race cases. The Supreme Court’s recent Obergefell decision unveiled a uniquely capacious conception of animus, which indicates that sexual orientation is moving even further away from race and gender. These findings suggest that law professors and legal scholars reconsider how they teach and write about equal protection.

Keywords: civil rights, same-sex marriage, gender, race, sexual orientation

JEL Classification: Z10

Suggested Citation

Robinson, Russell K., Unequal Protection (February 8, 2016). Stanford Law Review, Vol. 68, 2016, Available at SSRN: https://ssrn.com/abstract=2476714

Russell K. Robinson (Contact Author)

University of California, Berkeley ( email )

310 Barrows Hall
Berkeley, CA 94720
United States
510-642-3932 (Phone)

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