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Twenty-First Century Equal Protection: Making Law in an Interregnum

50 Pages Posted: 6 Feb 2006  

Nan D. Hunter

Georgetown University Law Center


This essay on Justice O'Connor's concurring opinion in Lawrence v. Texas argues that her framing of an explicit heightened rational basis standard potentially carries great importance for equal protection law. In Lawrence, the opinion of the Court held that the Texas criminal sodomy law violated the individual's liberty interest in engaging in private intimate conduct. Justice O'Connor concurred solely on equal protection grounds, in a brief but pithy opinion which sought to explain why she found the Texas statute unconstitutional under normally deferential rational basis review. She asserted that certain kinds of cases, where there was evidence of animus or bias infecting the legislative process, triggered heightened rationality review.

Professor Hunter argues that the O'Connor opinion has the potential not only to clarify inadequately reasoned gay rights decisions such as Romer v. Evans, but also to allow the Court to take responsibility for a shadowy lower mid-level standard of review that it has in fact been deploying, erratically, for three decades. Using documents only recently made available to the public as part of Justice Blackmun's papers, Professor Hunter traces the internal debates within the Court on levels of scrutiny in equal protection cases. She proposes that courts and scholars conceptualize the current equal protection claims by non-suspect groups as proceeding in a constitutional interregnum, suffused with complex political dynamics and tricky questions of judicial legitimacy.

This essay considers the formulation of heightened rational basis review in Justice O'Connor's concurrence as a response to the reality that this interregnum, in light of the conservatism of the federal judiciary, could continue for a significant period of time. Moreover, unlike the period when early civil rights cases were being litigated before Congress had ever enacted significant civil rights laws, this interregnum occurs at a time of wide expectation that if equality claims are legitimate, they will succeed in legislatures. Is it appropriate for judges to approach adjudication as if it is an attempt to predict subsequent legislative action? The very nature of an interregnum suggests uncertainty and disruption, yet law promises order and fairness. Professor Hunter's essay considers the O'Connor proposal for heightened rational basis in this context.

The final version of the essay will be published in the Georgetown Journal of Gender and Law.

Keywords: Constitution, Gender, Equal Protection, Supreme Court

JEL Classification: K10

Suggested Citation

Hunter, Nan D., Twenty-First Century Equal Protection: Making Law in an Interregnum. Georgetown Journal of Gender and the Law, Forthcoming; Brooklyn Law School, Legal Studies Paper No. 51. Available at SSRN:

Nan D. Hunter (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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