Obergefell, Fisher, and the Inversion of Tiers
19 University of Pennsylvania Journal of Constitutional Law 1043 (2017)
69 Pages Posted: 11 Mar 2016 Last revised: 17 Nov 2017
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
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