Obergefell, Fisher, and the Inversion of Tiers

69 Pages Posted: 11 Mar 2016 Last revised: 17 Nov 2017

See all articles by Maxwell L. Stearns

Maxwell L. Stearns

University of Maryland Francis King Carey School of Law

Date Written: March 9, 2016


In striking the ban on same-sex marriage in Obergefell v. Hodges, the Supreme Court avoided tiers of scrutiny, thus declining to apply rational basis in a non-deferential manner as it had in other cases involving sexual orientation. After signaling its growing discomfort with the deferential Grutter v. Bollinger strict scrutiny formulation in the Fisher I remand and the Fisher II oral argument, the Fisher v. University of Texas (Fisher II) majority embraced that very analysis to sustain the Texas affirmative action program. And although the Court claims to apply intermediate scrutiny in gender-based equal protection cases, the cases devolve to de facto applications of strict scrutiny or rational basis, based on whether the Court claims a real-sex difference or an overbroad gender-based generalization.

The tiers-of-scrutiny doctrine has evolved from two to three formal tiers, yet a closer reading suggests five applied tiers. As a basis for prediction, the tiers are inverted, producing the following counterintuitive sequence: strict scrutiny, rational basis plus, intermediate scrutiny, strict scrutiny lite, and rational basis. The result has been doctrinal confusion, a lack of predictability, and pleas for abandonment or fundamental reform.

This Article’s theoretical account explains why tiers of scrutiny should not be jettisoned and why the existing scheme, as applied to race, sexual orientation, and gender, has produced anomalous—perhaps even disingenuous—applications. It further demonstrates how a modest reconceptualization operating within the general framework of existing tiers can greatly simplify applications, avoid the most critical anomalies, and thereby improve doctrinal predictability and coherence.

Keywords: scrutiny, constitutional law, dimensionality, condorcet, cycling, social choice, tiers of scrutiny, equal protection, due process, race, gender, sexual orientation

Suggested Citation

Stearns, Maxwell L., Obergefell, Fisher, and the Inversion of Tiers (March 9, 2016). 19 University of Pennsylvania Journal of Constitutional Law 1043 (2017), U of Maryland Legal Studies Research Paper No. 2016-13, Available at SSRN: https://ssrn.com/abstract=2745369

Maxwell L. Stearns (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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