The Siren Song of Strict Scrutiny

12 Pages Posted: 14 May 2015 Last revised: 8 Jun 2016

Date Written: June 1, 2016

Abstract

The past few years have seen a trickle of pro-gay rights judicial decisions turn into a flood. Yet gay rights advocates have been perplexed by one doctrinal oddity in the Court's decision-making: even as it has delivered a consistent stream of favorable decisions dating from the 1990s, it has displayed no interest in declaring sexual orientation to be a "suspect classification." This determination, which would require that sexual-orientation classifications satisfy strict scrutiny, has long been high on the objective list for the LGBT movement -- representing an official determination that sexual minorities are a politically marginalized group that faces systematic, unjustified discrimination. With the Supreme Court poised to strike down gay marriage bans in Obergefell v. Hodges, it now seems clear that the Court will not elevate sexual orientation to the ranks of the suspect. This, for many, has been a bitter pill to swallow.

In this contribution to the "After Obergefell" symposium, I argue otherwise. Suspect status is effective at attacking explicit classificatory bars (such as the ban on gay marriage). But it takes as its price equal skepticism towards identity-conscious remedies (as civil rights campaigners have discovered in the affirmative action context). Making sexual orientation "suspect" would similarly burden gay rights campaigners in the legislature, whether their goals be affirmative action programs or (more likely) forms of identity-conscious protections for LGBT inmates facing prison violence. But by striking down anti-gay classifications on rational basis or due process grounds, the Court has given the LGBT movement the advantages of significant, serious judicial protection without the drawbacks of modern strict scrutiny doctrine.

Keywords: strict scrutiny, equal protection, gay marriage, gay rights, suspect classification

Suggested Citation

Schraub, David H., The Siren Song of Strict Scrutiny (June 1, 2016). 84 University of Missouri-Kansas City Law Review 859 (2016), Available at SSRN: https://ssrn.com/abstract=2605708

David H. Schraub (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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