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Gayffirmative action: the constitutionality of sexual orientation-based affirmative action policies.

ABSTRACT

Twenty-five years ago, the U.S. Supreme Court established a consistency principle in its race-based equal protection cases. That principle requires courts to apply the same strict scrutiny to racial classifications designed to benefit racial minorities--such as affirmative action policies--as they do to laws invidiously discriminating against them.

The new consistency principle, under which discrimination against whites is subject to strict scrutiny, conflicted with the Court's established criteria for declaring a group to be a suspect or quasi-suspect class entitled to heightened scrutiny, which focused on such considerations as the history of discrimination against the group and its political powerlessness.

As a result of this tension, the Court's line of precedents for identifying new suspect and quasi-suspect classes has gone dormant, and the Court has not since considered whether any additional such classes exist. Instead, when confronted with plausible candidates for heightened scrutiny, such as gays and lesbians, the Court has engaged in sporadic application of stealth rational basis review.

In this Article, I use a hypothetical equal protection challenge to a sexual orientation-based affirmative action policy as a vehicle for proposing a roadmap for harmonizing these competing lines of precedent. I demonstrate that, in light of the consistency principle, an aggrieved heterosexual can bring a challenge to such a policy and seek heightened equal protection scrutiny even though the Court has yet to establish heightened scrutiny for laws discriminating against gays and lesbians.

I conclude that such a harmonization of the Court's equal protection precedents will reinvigorate the Court's moribund precedents for identifying new suspect and quasi-suspect classes. Moreover, I conclude that announcing heightened scrutiny in such a case would present a particularly appealing vehicle to the Court's center, represented by Justice Kennedy, whose jurisprudence demonstrates both support for gay rights and hostility toward affirmative action policies.

INTRODUCTION

For much of American history, knowledge that a current or prospective student or employee was gay, lesbian, bisexual, or transgender was likely to result in the person losing their employment (1) or being expelled from their college or university. (2) Yet, as developments in both the judicial and legislative spheres have simultaneously resulted in the invalidation of laws criminalizing same-sex sexual activity (3) and the validation of same-sex relationships, (4) many employers and institutions of higher education have stopped treating one's status as a sexual minority as a negative consideration and have instead come to view it as irrelevant to employment and admissions decisions.

Still, what if--just as with racial minorities and women--public universities and employers decided not merely to react to the history of discrimination against sexual minorities by treating such status as irrelevant, but instead treated it as a positive consideration in making employment and admissions decisions? In other words, could a public employer or university decide that it would henceforth treat a prospective student's or employee's status as a sexual minority as a "plus" factor, or even establish specific hiring and admissions quotas? To justify doing so, would they have to point to their own specific history of discriminating against sexual minorities, or could they rely instead on general societal discrimination against that group? Could they instead justify such a policy on the grounds that it contributes to the diversity of the workplace or classroom, as a way to increase the provision of services to the LGBT community, or as a means of providing role models for LGBT youth? Moreover, if a heterosexual individual aggrieved by such a policy brought an equal protection (5) challenge against it, what level of judicial scrutiny would a court apply to such a claim? Would the policy be subject only to the highly deferential rational basis review, or could the petitioner argue for intermediate, strict, or the "more searching form" (6) of rational basis review? What impact would the level of scrutiny have on the constitutionality of such a policy?

Although such affirmative action policies are yet to be established--at least as a formal matter--the foundation necessary for developing them in the future is being laid, as public entities begin to collect data on the sexual orientation of prospective applicants. For example, in December 2012, the University of Iowa became the first public university to include questions about their applicants' sexual orientation and gender identity on their admission applications. (7) Subsequently, several public law schools began to include such a question on their admission applications. (8) In addition, in 2013, Scholastica (9)--a website that facilitates the submission of manuscripts to law reviews--created controversy amongst legal academics by asking authors to indicate their sexual orientation and gender identity in their profiles and forwarding that information to law review editors, including those at public universities. (10) This led to claims that law reviews housed at public universities that made selection decisions based on such criteria were open to a constitutional challenge on equal protection grounds.

The constitutionality of affirmative action policies targeted at sexual minorities--herein dubbed "gayffirmative action"--stands at the intersection of three distinct lines of equal protection precedents. The first, culminating in the Court's 2013 opinion Fisher v. University of Texas at Austin (11) and hereinafter referred to as the Adarand (12) line of precedent, has made it increasingly more difficult for public entities to implement affirmative action policies targeted at racial minorities. It has done so by applying a principle of "consistency" that requires such policies to be subject to the same "strict scrutiny" that the Court applies to state action discriminating against racial minorities. (13) As a result, the Court has held that justifications for race-based affirmative action policies, such as creating role models for minority children, (14) increasing the provision of services to minority communities, (15) and as a remedy for general past societal discrimination, are constitutionally insufficient. (16) Instead, only a handful of rationales that the Court has deemed to be "compelling"--such as the interests in remedying the government entity's own past discrimination against that group (as contrasted with general past societal discrimination) (17) and the interest in creating a diverse student body (18)--are constitutionally sufficient to justify such policies. Moreover, applying strict scrutiny, the Court has held that even when invoking this narrow set of constitutionally sufficient justifications for such policies, the means of accomplishing those rationales must be very finely tuned and individualized and thus cannot be accomplished through such means as setting quotas. (19)

The second line of equal protection precedent, culminating in the Court's 2013 opinion in United States v. Windsor (20) and hereinafter referred to as the Moreno (21) line of precedent, has made it increasingly difficult for governmental entities to discriminate against sexual minorities by declaring unconstitutional laws that discriminate on that basis. (22) In this line of cases, the Court has side-stepped the question whether laws discriminating on the basis of sexual orientation should be subject to heightened judicial scrutiny. Rather, in each of the cases in this line of precedents, the Court invoked its earlier holding in United States Department of Agriculture v. Moreno (23) that "a bare ... desire to harm a politically unpopular group" is not a legitimate governmental interest even under rational basis review. (24)

The third line of equal protection precedent--which has sat dormant since the Court announced its principle of "consistency" and hereinafter referred to as the Frontiero (25) line of precedent--sets forth the criteria for deciding whether or not to accord heightened scrutiny to a given classification when challenged on equal protection grounds. Because this line of precedent predates the "consistency" line of precedent, many of the factors focus on the specific class against whom state action is directed (such as African Americans or women) rather than the classification employed (such as race or sex). Included among the factors are (1) whether the group against whom the classification is directed has suffered from a history of discrimination; (2) whether the group is politically powerless; (3) whether the characteristic at issue is obvious or visible; (4) whether the characteristic at issue bears any relationship to ability to perform or contribute to society; and (5) whether the characteristic at issue is immutable. (26)

A gayffirmative action policy that fell short of the standards imposed by the Court for race-based affirmative action policies would effect a merger of these three lines of equal protection cases and would require the Court to resolve a number of difficult questions that have been percolating in the background of equal protection jurisprudence ever since the Court switched its focus--at least so far as race and sex are concerned--from suspect classes to suspect classifications.

Consider, for example, a public medical school that establishes an affirmative action policy designed to increase the number of gay and transgender medical students, and, ultimately, doctors. Suppose that the school cites two rationales for the policy: a desire to provide LGBT youth with positive role models, and a desire to increase the provision of medical services to members of the LGBT community, which the school believes have special medical needs that are often overlooked by heterosexual doctors. Moreover, suppose that, instead of merely considering it a "plus" factor in making admissions decisions, the school dedicates five percent of the seats in its class to sexual minorities, estimating that to be their percentage of the general population.

While such a policy, if race-based, would clearly not pass constitutional muster if challenged by an aggrieved white individual, the constitutionality of such a policy, when challenged by a heterosexual similarly aggrieved by it, turns on the answers to a number of important questions, nearly all of which remain open. If such a law is subject merely to rational basis review, would it pass constitutional muster? Will the Court eventually apply the Frontiero line of precedent to hold that laws discriminating against sexual minorities are subject to intermediate or strict scrutiny? If so, will the Adarand line of precedent compel the Court to hold that laws discriminating against heterosexuals are similarly subject to that heightened level of judicial scrutiny? If heightened scrutiny is not established for laws that discriminate against sexual minorities at the time an aggrieved heterosexual brings suit, could he simultaneously invoke the criteria for applying heightened scrutiny to laws that discriminate against sexual minorities set forth in the Frontiero line of precedent, coupled with the "consistency" principle set forth in the Adarand line of precedent, to justify the application of intermediate or strict scrutiny to the law? To the extent that there was evidence that the policy was motivated by "animus" against heterosexuals, could the aggrieved plaintiff seek to have the Court apply the "more searching form" of rational basis review set forth in the Moreno line of precedent, in reliance on the ground that heterosexuals are a "politically unpopular group?" Finally, if the state in which the medical school is located has established precedent subjecting laws discriminating against sexual minorities to a higher level of scrutiny as a matter of state constitutional law than that applicable under federal equal protection jurisprudence, and the plaintiff invokes that state constitutional provision, would the state be compelled as a matter of federal equal protection jurisprudence to apply the principle of "consistency" and extend heightened scrutiny to laws discriminating against heterosexuals?

This Article proceeds in five parts. Part I provides a brief overview of equal protection jurisprudence in general and traces the development of the Frontiero, Adarand, and Moreno lines of precedent. Part II of this Article demonstrates that--in the absence of heightened equal protection scrutiny for sexual orientation classifications--a quota-based gayffirmative action policy justified by such goals as creating role models for LGBT youth and providing services to the LGBT community would easily pass constitutional muster under traditional rational basis review. Part III independently examines the Frontiero and Adarand lines of precedent to demonstrate that laws discriminating against sexual minorities should eventually be deemed by the Court to be subject to intermediate or strict scrutiny and that the "consistency" principle likely will require that same level of scrutiny to be applied to laws discriminating against heterosexuals. Part IV of this Article addresses the question whether a heterosexual individual aggrieved by such an affirmative action policy can argue for heightened scrutiny--even in the absence of precedent establishing intermediate or strict scrutiny for laws discriminating against sexual minorities--either by invoking the Frontiero and Adarand lines of precedent in tandem or invoking the Moreno line of precedent. Part V of this Article addresses the question whether a state with established precedent subjecting laws discriminating against sexual minorities to a higher level of scrutiny as a matter of state constitutional law than that applicable under federal equal protection jurisprudence would be compelled as a matter of federal equal protection jurisprudence to apply the principle of "consistency" and extend heightened scrutiny to laws discriminating against heterosexuals.

This Article proposes that these three lines of equal protection precedent can best be harmonized by formally recognizing two separate methods of obtaining heightened equal protection scrutiny that are an outgrowth of the factors identified in the Frontiero line of precedent. Under this approach, the political powerlessness factor stands on its own as a basis for obtaining a "more searching form" of rational basis review for laws targeting a politically unpopular group. This is represented by the Moreno line of precedent and is focused exclusively on the relative political power of the class impacted by any given law, making it a "one way" form of review that can only be invoked by situation-specific powerless classes of persons who are the targets of legislative animus. The remaining factors, coupled with the Adarand line of precedent, can be abstracted in a way that is focused on the nature of the classification employed rather than the specific class impacted by any given law, making the intermediate or strict scrutiny that follows from application of those precedents something that can be invoked, in the first instance, not only by classes of persons that are relatively politically powerless, but rather by anyone who is classified using suspect or quasi-suspect criteria.

This Article concludes that announcing heightened scrutiny in such a case--which under the consistency principle would benefit gays and lesbians in battles over marriage equality, parenting rights, and the like--would present a particularly appealing vehicle to the Court's center, represented by Justice Kennedy, whose jurisprudence to date simultaneously demonstrates support for gay rights and hostility toward affirmative action policies.

I. BACKGROUND

A. Overview of Equal Protection Jurisprudence

Modern-day equal protection jurisprudence is characterized by tiered levels of scrutiny, whereby the level of scrutiny varies depending upon the classification involved or the right affected. The tiered approach was described by the Court in its 1988 decision Clark v. Jeter (27) as follows:
   In considering whether state legislation violates the Equal
   Protection Clause of the Fourteenth Amendment, ... we apply
   different levels of scrutiny to different types of classifications.
   At a minimum, a statutory classification must be rationally related
   to a legitimate governmental purpose. Classifications based on race
   or national origin, and classifications affecting fundamental
   rights, are given the most exacting scrutiny. Between these
   extremes of rational basis review and strict scrutiny lies a level
   of intermediate 27 scrutiny, which generally has been applied to
   discriminatory classifications based on sex or illegitimacy. (28)


Under the tiered approach, the higher the level of scrutiny, the greater the judicial scrutiny of both the legislative end sought to be accomplished by the law and the means for achieving that end. At the lowest level of review--rational basis--the end need only be legitimate (and need not even be the real rationale for the law, but merely a hypothesized one), and the means employed to achieve that end need only be "rationally related" to achieving it, allowing for substantial over- and under-inclusiveness. (29) At the opposite extreme--strict scrutiny--the end must be compelling and the means employed to achieve that end "narrowly tailored" so as to eliminate over- or under-inclusiveness. (30) Between the two is intermediate scrutiny, which requires an "important" government interest and a means that is "substantially related" to achieving that end. (31)

Much of the complexity of modern-day equal protection jurisprudence can be traced to two competing forces that have shaped it: a general desire on the part of the Supreme Court to distance itself from the Lochner (32) era--a period in which the Court was subject to heavy criticism for interfering with and second-guessing the legislative process through an aggressive interpretation of its powers under the Due Process Clauses--coupled with a desire to maintain a safety valve that allows the Court to step in and strike legislation down that targets a vulnerable group.

The roots of these two competing forces appear in the Court's 1938 post-Lochner decision in United States v. Carotene Products Co., (33) where the Court--after rejecting a substantive due process challenge to a federal statute--describes the similarly deferential "rational basis" standard applicable to equal protection challenges:
   The ... equal protection clause ... does not compel ...
   Legislatures to prohibit all like evils, or none. A Legislature may
   hit at an abuse which it has found, even though it has failed to
   strike at another.

   [T]he existence of facts supporting the legislative judgment is to
   be presumed, for regulatory legislation affecting ordinary
   commercial transactions is not to be pronounced unconstitutional
   unless in the light of the facts made known or generally assumed it
   is of such a character as to preclude the assumption that it rests
   upon some rational basis within the knowledge and experience of the
   legislators. (34)


The Court subsequently reiterated the deferential nature of its default level of equal protection scrutiny in Williamson v. Lee Optical, Inc.: (35)
   The problem of legislative classification is a perennial one,
   admitting of no doctrinaire definition. Evils in the same field may
   be of different dimensions and proportions, requiring different
   remedies. Or so the legislature may think. Or the reform may take
   one step at a time, addressing itself to the phase of the problem
   which seems most acute to the legislative mind. The legislature may
   select one phase of one field and apply a remedy there, neglecting
   the others. The prohibition of the Equal Protection Clause goes no
   further than the invidious discrimination. (36)


Yet, in what has been termed "the most celebrated footnote in constitutional law," (37) the Carolene Products Court set forth an important caveat:
   It is unnecessary to consider now whether legislation which
   restricts those political processes which can ordinarily be
   expected to bring about repeal of undesirable legislation, is to be
   subjected to more exacting judicial scrutiny under the general
   prohibitions of the Fourteenth Amendment than are most other types
   of legislation.... Nor need we enquire whether similar
   considerations enter into the review of statutes directed at
   particular religious, or national, or racial minorities: whether
   prejudice against discrete and insular minorities may be a special
   condition, which tends seriously to curtail the operation of those
   political processes ordinarily to be relied upon to protect
   minorities, and which may call for a correspondingly more searching
   judicial inquiry. (38)


But how has the Court come to decide that certain classifications are subject to intermediate or strict scrutiny, while others are entitled merely to rational basis review? Moreover, how is it that a caveat in Carolene Products referring to the possibility of heightened scrutiny for discrimination against "discrete and insular minorities" has come to result in the application of heightened judicial scrutiny for discrimination against whites? Finally, if heightened scrutiny is inapplicable, does rational basis review ever result in the invalidation of legislation, and if so, when? The answers to these questions are provided, respectively, by the Frontiero, Adarand, and Moreno lines of equal protection precedent.

B. Development of the Frontiero, Adarand, and Moreno Lines of Precedent

1. Factors Required to Accord Heightened Scrutiny: The Frontiero Line of Precedent

The roots of what today is referred to as strict scrutiny grew out of dictum in a pair of cases decided by the U.S. Supreme Court during World War II involving a curfew for and the internment of persons of Japanese ancestry. Although the measures were upheld by the Court, the decisions used language suggesting that equal protection claims involving race would be subject to more rigorous scrutiny than run-of-the-mill equal protection claims. The Court wrote that "racial discriminations are in most circumstances irrelevant and therefore prohibited," (39) and that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect" and thus that "courts must subject them to the most rigid scrutiny." (40)

Yet, it was not until the 1960s that this promising dictum bore fruit, with the Court citing it in both its 1964 decision McLaughlin v. Florida, (41) declaring unconstitutional a law prohibiting interracial cohabitation, and its 1967 decision Loving v. Virginia, (42) declaring unconstitutional a law prohibiting interracial marriage. In McLaughlin, the Court began to sketch out the heightened level of review the Court would employ for racial classifications, specifically distinguishing Lee Optical and holding that a racial classification "will be upheld only if it is necessary, and not merely rationally related, to the accomplishment of a permissible state policy," (43) a standard that the Court reiterated in Loving, (44) The Court would for some time vacillate in the language it used to describe the strength of the state interest--a vacillation to which it attributed no importance (45)--and would ultimately rephrase the standard as one requiring that it be narrowly tailored to further a compelling governmental interest. (46)

With cases such as McLaughlin and Loving making clear that strict scrutiny could result in the invalidation of laws challenged on equal protection grounds, litigants began to contend that strict scrutiny should be available to challenge laws targeting other disadvantaged groups, such as aliens, the poor, women, the elderly, the mentally retarded, and children born out of wedlock. In a series of cases decided in the 1970s and the 1980s, the Court accepted the claims of some of these groups and rejected others. In so doing, the Court set forth a series of factors designed to distinguish those classifications that, like race or national origin, merited heightened equal protection scrutiny.

The Court first considered expanding the number of groups entitled to strict scrutiny in its 1971 decision Graham v. Richardson, (47) where it addressed the question whether laws discriminating against aliens were subject to strict scrutiny. The Court--with little analysis--concluded that they were, quoting from the caveat contained in Carotene Products' famous footnote and concluding that "[a]liens as a class are a prime example of a 'discrete and insular' minority for whom such heightened judicial solicitude is appropriate." (48)

Two years later, in San Antonio Independent School District v. Rodriguez, (49) the Court rejected an argument that a law discriminating against the poor was subject to heightened scrutiny. Without citation to any cases, the Court concluded that the poor, which it described as a "large, diverse, and amorphous class," has "none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." (50)

Rodriguez thus appeared to identify two considerations--a group's history of discrimination and its lack of political power--as relevant in determining whether or not to apply heightened scrutiny to laws discriminating against that group.

Less than two months later, a plurality of the Court--in Frontiero v. Richardson (51)--concluded that strict scrutiny was required for laws that discriminate against women. The Court identified six considerations that it believed, like race and national origin, made strict scrutiny appropriate. First, it noted the history of discrimination against women was comparable to that of African Americans. (52) Second, it noted the "high visibility" of a person's sex. (53) Third, while acknowledging that women as a group were not "a small and powerless minority," it nonetheless took note of their relative lack of political power. (54) Fourth, it noted that "sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth." (55) Fifth, it differentiated sex from non-suspect statuses--such as intelligence or physical ability--on the ground that it "frequently bears no relation to ability to perform or contribute to society." (56) Finally, it took note of the fact that Congress had enacted legislation designed to combat sex discrimination, and held that the fact that a coequal branch of government has concluded that sex discrimination is invidious is a relevant consideration in deciding whether to accord a class heightened scrutiny. (57) Although only a plurality opinion and thus arguably offering limited precedential value, (58) nearly all of the factors have been reaffirmed in some fashion in subsequent Court decisions.

Three years later, in 1976, the Court issued a pair of decisions rejecting arguments that discrimination on the basis of age or illegitimacy should be subject to strict scrutiny. The Court--citing Rodriguez--concluded in Massachusetts Board of Retirement v. Murgia (59) that, unlike those discriminated against on the basis of race or national origin, the elderly have not experienced '"a history of purposeful unequal treatment' or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities." (60) Furthermore, citing Carotene Products, the Court noted that "old age does not define a 'discrete and insular' group" because it "marks a stage that each of us will reach if we live out our normal span." (61) The Murgia Court seemed to reinforce three of the Frontiero factors: the absence of a history of discrimination, the fact that old age is related to ability to perform or contribute to society, and the fact that age is mutable and thus old age is a classification that nearly all persons will eventually experience.

With respect to illegitimacy, the Court acknowledged in Mathews v. Lucas (62) that the status was in some ways analogous to race and national origin; it is "not within the control of the illegitimate individual"--thus making it effectively immutable--and that status "bears no relation to the individual's ability to participate in and contribute to society." (63) But it contrasted illegitimacy with race and sex--the latter of which the Court assumed to be subject to strict scrutiny based on the plurality opinion in Frontiero (64)--on the ground that it "does not carry an obvious badge," and as a result of that invisibility, the illegitimate did not experience the "pervasive[] ... historical] legal and political discrimination" experienced by women and African Americans. (65) Yet, despite the Court's unwillingness to declare illegitimacy a suspect class, it nonetheless did--in cases decided both prior and subsequent to Mathews--declare unconstitutional on equal protection grounds laws that discriminated on the basis of illegitimacy. The Court, while not specifying the level of scrutiny it was applying, focused on the unjustness of laws that target a status over which the illegitimate child lacks control, thus focusing on effective immutability. (66) Moreover, the Mathews Court acknowledged that the standard to be applied in evaluating such laws was "not a toothless one," (67) and in subsequent cases, the Court acknowledged that laws discriminating on the basis of illegitimacy were entitled to "somewhat heightened review." (68)

In the final days of 1976, the Court in Craig v. Boren (69) once again revisited the question regarding equal protection scrutiny for laws that discriminate on the basis of sex. In the intervening years since Frontiero, the Court had decided several other equal protection challenges based on sex, but had disposed of them without definitively resolving the standard of review. (70) Moreover, Craig differed from Frontiero: the discrimination complained about in Craig directly targeted men, not women. The Court for the first time announced what has since come to be known as intermediate scrutiny. Without citation to any particular cases (leading to a charge by Justice Rehnquist in dissent that the test had been created out of "thin air"), (71) the Court wrote that "previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." (72) The Court did not discuss or revisit the factors it had identified in Frontiero and built upon in subsequent cases, nor how those factors would impact the determination whether to accord a group intermediate or strict scrutiny.

Six years passed before the Court gave serious consideration to a claim that a group should be accorded heightened equal protection scrutiny. In 1982, in Plyler v. Doe, (73) the Court rejected the idea that laws discriminating against illegal aliens in general were subject to heightened scrutiny, noting that the status was the product of "voluntary action" in illegally entering the country and thus could not be said to be immutable. (74) However, with respect to laws discriminating against the children of illegal aliens--at least those involving education--the Court viewed their status, like that of illegitimate children, as effectively immutable, and appeared to apply something akin to intermediate scrutiny. (75)

The Court last engaged in an in-depth application of the factors for determining whether a given classification was entitled to heightened equal protection scrutiny in 1985 with City of Cleburne v. Cleburne Living Center Inc., (76) which addressed whether discrimination against the mentally retarded should be subject to intermediate scrutiny. In deciding that it should not be, the Court addressed and refined many of the factors set forth in its earlier cases. (77) The Court first acknowledged that mental retardation is an immutable characteristic, but that--unlike race or sex--it does relate to their ability to perform. (78) Next, the Court noted the great deal of federal and state legislation enacted to protect the mentally retarded, which the Court viewed as a sign that the mentally retarded are not politically powerless. (79) As such, the Cleburne Court effectively nullified the sixth Frontiero factor, which viewed the enactment of antidiscrimination legislation by a coequal branch as further evidence of a group's suspect nature. (80) The Court went on to refine what it means to be "politically powerless," indicating that it does not mean "powerless to assert direct control over the legislature," but instead that the group has "no ability to attract the attention of the lawmakers." (81) Finally, the Court relied on a consideration first noted by the Rodriguez Court: the fact that the group was "large and amorphous" militated against according them heightened scrutiny. (82)

The following year, in Lyng v. Castillo, (83) the Court gave short shrift to a claim that discrimination against "close relatives" should be subject to heightened scrutiny. While short on analysis, the opinion is salient because it reorganized the factors in a way that presented some of them in the disjunctive. The Lyng Court thus identified the three relevant inquiries as (1) whether the group has suffered a history of discrimination; (2) whether the group exhibits "obvious, immutable, or distinguishing characteristics that define them as a discrete group"; and (3) whether they are either a minority or politically powerless. (84)

The Court's 1988 decision in Clark v. Jeter (85)--involving discrimination on the basis of legitimacy--marked the last time that the Court formally announced a heightened level of scrutiny under the equal protection clause for a previously unrecognized group. As with Craig, however, the Court did not engage in any sort of analysis of the factors identified in its earlier cases, but simply characterized its earlier decisions as standing for the proposition that intermediate scrutiny was the appropriate standard. (86)

Since its decision in Lyng, the Court has rarely mentioned the relevant factors for according a group heightened scrutiny, and when it has done so, they have only been mentioned in passing, (87) as the Court in a majority opinion has not in any subsequent case analyzed a claim for heightened class-based equal protection scrutiny. (88) As will be shown in the section that follows, this silence on the Court's part starting in the late 1980s can be directly tied to the rise of the "consistency" line of precedent that took root at the same time.

2. The Rise of the Consistency Requirement: The Adarand Line of Precedent

In terms, the Equal Protection Clause appears to be neutral and of broad application, providing that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." (89) However, the Clause itself was part of a series of amendments to the U.S. Constitution enacted with the specific purpose of protecting the recently emancipated slaves, and in the first decision interpreting it, the Court in 1873 suggested that it not only was limited to claims of racial discrimination, but further that it operated in a one-way fashion so as to protect only African Americans:
   We doubt very much whether any action of a State not directed by
   way of discrimination against the negroes as a class, or on account
   of their race, will ever be held to come within the purview of this
   provision. It is so clearly a provision for that race and that
   emergency, that a strong case would be necessary for its
   application to any other. (90)


With regard to the first suggested limitation, history would show, as Justice Rehnquist would later note, that the "Court has proved Mr. Justice Miller a bad prophet with respect to nonracial classification." (91) With regard to the second suggested limitation, seven years later, in Strauder v. West Virginia, (92) the Court, in declaring unconstitutional on equal protection grounds a statute excluding African Americans from grand and petit juries, indicated--albeit in dicta--that the Clause would not necessarily operate in a one-way fashion, at least if whites were in the minority in a given jurisdiction:
   If in those States where the colored people constitute a majority
   of the entire population a law should be enacted excluding all
   white men from jury service, thus denying to them the privilege of
   participating equally with the blacks in the administration of
   justice, we apprehend no one would be heard to claim that it would
   not be a denial to white men of the equal protection of the laws.
   Nor if a law should be passed excluding all naturalized Celtic
   Irishmen, would there be any doubt of its inconsistency with the
   spirit of the amendment. (93)


Of course, this question was for most of U.S. history a theoretical one, since every law the Court confronted until the 1970s involved discrimination against African Americans. (94) But in 1978, the Court for the first time confronted the question whether a race-based affirmative action policy benefiting racial minorities was to be subjected to the same strict scrutiny applied to laws that invidiously discriminated against them. The Court, in Regents of University of California v. Bakke, (95) declared unlawful a medical school's affirmative action policy under which sixteen of one hundred seats were reserved for racial minorities. The Court could not agree on a rationale, but the opinion penned by Justice Powell--announcing the judgment of the Court--declared that such classifications should be subject to strict scrutiny, reasoning that "[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color." (96) Justice Powell's opinion in Bakke was thus the first opinion in which the concept of "consistency" had been suggested outside of dictum.

In Bakke, four Justices avoided the equal protection issue altogether, deciding the case on statutory grounds, (97) while the remaining four Justices indicated that the application of strict scrutiny to a law discriminating against whites was inconsistent with the factors for according heightened scrutiny set forth in its earlier cases. These same four Justices noted that whites as a class are '"not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.'" (98) Justice Powell acknowledged that many of the Court's decisions had considered factors such as "discreteness and insularity," but concluded that these considerations were relevant to deciding "whether or not to add new types of classifications to the list of 'suspect' categories." (99) In Justice Powell's view, racial and ethnic classifications were sui generis, and thus subject to strict scrutiny "without regard to these additional characteristics." (100)

It was not until 1989 in City of Richmond v. J.A. Croson Co. (101) that five Justices signed onto opinions declaring that race-based affirmative action policies benefiting racial minorities were to be subjected to the same strict scrutiny applied to laws that invidiously discriminated against them, and not until 1995 in Adarand Constructors, Inc. v. Pena (102) that the Court made clear that this standard applied not only to equal protection claims brought against the states, but also those brought against the federal government. Yet, in the intervening years, there were a number of developments in equal protection jurisprudence outside of race that foreshadowed the application of strict scrutiny to all race-based affirmative action policies.

First, as indicated above, in 1976, the Court announced for the first time in Craig v. Boren, (103) that laws discriminating on the basis of sex were to be subject to intermediate scrutiny. However, Craig was a case in which men, not women, were bringing the constitutional challenge on the ground that the law disadvantaged men. Accordingly, in Craig, the Court in effect adopted the principle of consistency sub silentio, at least so far as sex was concerned. Writing in dissent, Justice Rehnquist noted the inconsistency between the Court's rationale for applying heightened scrutiny to laws disfavoring women in Frontiero and its decision to accord heightened scrutiny to laws disfavoring men:
   Most obviously unavailable to support any kind of special scrutiny
   in this case, is a history or pattern of past discrimination, such
   as was relied on by the plurality in Frontiero to support its
   invocation of strict scrutiny. There is no suggestion in the
   Court's opinion that males in this age group are in any way
   peculiarly disadvantaged, subject to systematic discriminatory
   treatment, or otherwise in need of special solicitude from the
   courts. (104)


In Mississippi University for Women v. Hogan, (105) a post-Craig, pre-Croson decision, the Court reaffirmed the consistency principle (without so labeling it), emphasizing that the fact that a law "discriminates against males rather than against females does not exempt it from scrutiny or reduce the standard of review." (106) In turn, a plurality of the Court in a pre-Croson case cited Hogan in a race-based affirmative action case for the general proposition that "the level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination." (107)

The second intervening development occurred in 1985, when the Court issued its decision in City of Cleburne v. Cleburne Living Center, Inc. (108) In addition to its application of the Frontiero and other factors from its prior cases, the Court also indicated another reason for declining to subject laws discriminating against the mentally retarded to intermediate scrutiny:
   It may be ... that legislation designed to benefit, rather than
   disadvantage, the retarded would generally withstand examination
   under a test of heightened scrutiny.... Even assuming that many of
   these laws could be shown to be substantially related to an
   important governmental purpose, merely requiring the legislature to
   justify its efforts in these terms may lead it to refrain from
   acting at all. (109)


Thus, the Cleburne Court seemed to take as given a general underlying consistency principle that would require laws designed to benefit the mentally retarded to be subjected to the same heightened scrutiny that they were seeking in Cleburne to have applied to laws discriminating against them.

Given the opinion of Justice Powell in Bakke and the assumption of consistency underlying some of the Court's non-race equal protection cases, the Court's 1989 decision in Croson requiring the application of strict scrutiny to state affirmative action policies benefiting racial minorities (110) is perhaps somewhat less shocking than it first appears. Nonetheless, like Justice Rehnquist in Craig, Justice Marshall, dissenting in Croson, noted how the decision was at odds with the Court's decisions setting forth the factors for deciding whether or not to accord heightened scrutiny to a class. (111) It is thus not surprising that the Frontiero line of cases went dormant around this same time, since the two lines of precedent are--at least as presently configured--difficult to reconcile.

Still, it was possible even after Croson for the Court to limit the scope of its consistency principle in two distinct ways. First, Croson involved an equal protection clause challenge against a state. Because the Equal Protection Clause of the Fourteenth Amendment does not apply against the federal government, litigants must instead invoke the "equal protection" principle that the Court has found embodied within the Due Process Clause of the Fifth Amendment. (112) Because the sources of protection differ, it remained possible to subject them to different standards. Second, the facts of Croson itself were akin to the hypothetical jurisdiction described by the Court over 100 years earlier in Strauder.
   Even were we to accept a reading of the guarantee of equal
   protection under which the level of scrutiny varies according to
   the ability of different groups to defend their interests in the
   representative process, heightened scrutiny would still be
   appropriate in the circumstances of this case. One of the central
   arguments for applying a less exacting standard to "benign" racial
   classifications is that such measures essentially involve a choice
   made by dominant racial groups to disadvantage themselves....

      In this case, blacks constitute approximately 50% of the
   population of the city of Richmond. Five of the nine seats on the
   city council are held by blacks. The concern that a political
   majority will more easily act to the disadvantage of a minority
   based on unwarranted assumptions or incomplete facts would seem
   to militate for, not against, the application of heightened
   judicial scrutiny in this case. (113)


Given this unusual factual scenario, it was thus possible in future cases to limit Croson to the situation in which a racial classification is made and the race negatively impacted by the classification is in the minority in the particular jurisdiction in which it is implemented.

The Court briefly flirted with the first distinction, holding just one year later in Metro Broadcasting, Inc. v. FCC (114) that benign racial classifications imposed by the federal government were subject only to intermediate scrutiny. (115) But just five years later, the Court in Adarand overturned Metro Broadcasting, emphasizing not only the newly coined principle of "consistency"--that the "standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification" (116)--but also the newly coined principle of "congruence"--that '"Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.'" (117) Moreover, unlike Croson, the affirmative action policy at issue was federal, and thus enacted in a jurisdiction in which African Americans and the other groups benefiting from the policy were squarely in the minority. Thus, by 1995, the consistency principle was firmly rooted in equal protection jurisprudence, at least with respect to sex and race discrimination.

3. Rational Basis "Plus " Review: The Moreno Line of Precedent

In 1973--the same year that the Court issued its decision in Frontiero setting forth the factors for determining when to apply heightened equal protection scrutiny, the Court in U.S. Department of Agriculture v. Moreno (118) also considered an equal protection challenge to the constitutionality of an amendment to a federal statute, the Food Stamp Act, which rendered ineligible to participate in the program any household containing an individual who is unrelated to any other member of the household. On its face, the Act created two rather neutral-looking classes of persons, those living in "households all of whose members are related to one another," and those living "in households containing one or more members who are unrelated to the rest." (119) Yet, the Court noted, lurking in the background of the Act was an effort to target a particular group, specifically, "hippies" and "hippie communes." (120)

It would have been quite a stretch for the Moreno Court to apply the Frontiero factors and conclude that hippies were a suspect class. The Court did not attempt to do so, nor did it purport to be applying anything more than rational basis scrutiny. (121) Yet, after reciting the evidence that the purpose of the amendment was to target hippies and hippie communes, the Court wrote:
   The challenged classification clearly cannot be sustained by
   reference to this congressional purpose. For if the constitutional
   conception of "equal protection of the laws" means anything, it
   must at the very least mean that a bare congressional desire to
   harm a politically unpopular group cannot constitute a legitimate
   governmental interest. (122)


The Court then proceeded to declare the law unconstitutional, (123) applying what can perhaps be referred to as an aggressive or heightened form of rational basis review. Indeed, even the concurring opinion--which agreed with the result in the case--acknowledged that the law would pass traditional rational basis review. (124)

To be sure, Moreno did not mark the first instance in which the Court purported to apply rational basis review to an equal protection claim but in truth applied something more substantial. In the two years immediately preceding Moreno, the Court issued a pair of decisions, Reed v. Reed (125) and Weber v. Aetna Casualty & Insurance Co., (126) which declared unconstitutional laws discriminating, respectively, on the basis of sex and legitimacy. In each case, the Court purported to apply only rational basis review (127)--which virtually always results in upholding the validity of the law under the deferential standard articulated in cases such as Carolene Products and Lee Optical--yet nonetheless declared the laws to violate the equal protection clause. In fact, Weber was itself preceded three years earlier by Levy v. Louisiana, (128) in which the Court did much the same thing with respect to illegitimacy discrimination. One might thus contend that this marked an era in which the Court more generally sought to transform rational basis review into something more substantial and less deferential than the test articulated in Carolene Products and Lee Optical.

Yet, as I have remarked elsewhere, (129) what distinguishes the heightened rational basis review in cases such as Reed and Weber on the one hand from Moreno on the other is the subsequent trajectory of the decisions. Reed and Weber are what I have described as "transitional rational basis plus" cases, in which the Court: mouths the language of rational basis while in fact applies what appears to be some form of heightened scrutiny; subsequently explicitly holds that laws discriminating on that basis are subject to heightened scrutiny; and re-characterizes its earlier decisions as actually applying heightened scrutiny despite their use of rational basis parlance. (130) Both Reed and Weber followed this pattern, with the Court eventually subjecting sex and illegitimacy classifications to intermediate scrutiny and so characterizing the earlier decisions. (131)

Moreno, by contrast, is not a "transitional rational basis plus" case. It was the first and last time that the Court addressed a claim involving discrimination against "hippies" and "hippie communes." The Court did not go on to subsequently hold that "hippies" are a suspect class (or, in post-Adarand lingo, that "hippiness" or "hippie orientation" is a suspect classification). Rather, Moreno is what I have described as a "fleeting rational basis plus case," in which the Court applies an intermittent form of heightened rational basis review based on the specific facts of the case, namely, what it sees as a temporary breakdown in the political process whereby a law appears to be enacted for the purpose of harming a politically unpopular group, albeit a group which does not merit heightened scrutiny under the Frontiero factors. (132)

In his book The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection, Evan Gerstmann contends that the Court decided to create intermediate scrutiny and to re-characterize its earlier decisions striking down laws discriminating on the basis of sex and legitimacy as applying such scrutiny for the specific purpose of returning rational basis review to its Carolene Products-Lee Optical roots and preventing litigants from citing cases such as Reed, Levy, and Weber for the more general proposition that rational basis review is not toothless but in fact substantial. (133)

Gerstmann may well be correct about the intent of the Court, or at least some of its members, in acknowledging intermediate scrutiny, and subsequent to the creation of intermediate scrutiny in 1976, Moreno lay dormant for some time. Yet the development of the consistency line of precedent in the second half of the 1980s, whose tension with the Frontiero line of cases halted the development of that line of cases, simultaneously resulted in the reemergence of Moreno's "fleeting rational basis plus" standard of review.

Moreno first resurfaced in the Court's 1985 decision Cleburne v. Cleburne Living Center, Inc. (134) As noted above, Cleburne marked the last time that the Court engaged in an in-depth analysis of the factors that determine whether or not to apply heightened equal protection scrutiny. It also was a case that provided an early signal of the establishment of the consistency principle, with its assumption that applying heightened scrutiny to laws discriminating against the mentally retarded would result in the application of that same level of scrutiny to laws designed to benefit the mentally retarded. (135)

Yet, after rejecting the application of anything greater than rational basis review to the law at issue, the Cleburne Court proceeded to declare the law unconstitutional as applied. The Court began its analysis by quoting Moreno for the proposition that "some objectives--such as 'a bare ... desire to harm a politically unpopular group'--are not legitimate state interests." (136) The Court then applied a level of scrutiny to the law, akin to Moreno, that lacked the deference normally associated with traditional rational basis review. (137) Moreover, like Moreno, the Court did not characterize the classification at issue in the case as suspect or quasi-suspect. (138)

This departure from traditional rational basis review in Cleburne was noted by Justice Marshall, who penned a separate opinion. Justice Marshall characterized Moreno as an "intermediate review decision[] masquerading in rational-basis language," (139) and similarly characterized the majority's opinion in Cleburne:
   [T]he Court does not label its handiwork heightened scrutiny, and
   perhaps the method employed must hereafter be called "second order"
   rational-basis review rather than "heightened scrutiny." But
   however labeled, the rational basis test invoked today is most
   assuredly not the rational-basis test of Williamson v. Lee Optical
   ... and [its] progeny. (140)


Specifically, Justice Marshall identified three ways the analysis in Cleburne differed from traditional rational basis review: (1) it focused on the underinclusiveness of the law, whereas traditional rational basis review permits substantial underinclusiveness; (2) it looked for evidence in the record to support the alleged rationale for the law, even though traditional rational basis review does not require support in the record; and (3) it appeared to place the burden on the government, whereas with traditional rational basis the burden is on the challenger. (141) Justice Marshall went on to articulate the twin dangers associated with the majority's approach:
   The suggestion that the traditional rational-basis test allows this
   sort of searching inquiry creates precedent for this Court and
   lower courts to subject economic and commercial classifications to
   similar and searching "ordinary" rational-basis review--a small and
   regrettable step back toward the days of Lochner v. New York.
   Moreover, by failing to articulate the factors that justify today's
   "second order" rational-basis review, the Court provides no
   principled foundation for determining when more searching inquiry
   is to be invoked. Lower courts are thus left in the dark on this
   important question, and this Court remains unaccountable for its
   decisions employing, or refusing to employ, particularly searching
   scrutiny. (142)


Consistent with Justice Marshall's critique, the Court, in subsequent cases--at least in subsequent cases in which it was not inclined to overturn the law at issue--rejected arguments by litigants that Moreno and Cleburne established a more rigorous standard of review, instead describing them as a mere application of the traditional rational basis test. (143)

C. At the Crossroads: The Gay Rights Cases

In 1985--the same year in which the Court issued its opinion in Cleburne rejecting intermediate scrutiny for laws targeting the mentally retarded while simultaneously applying Moreno-style rational basis review to strike down the law--the Court declined to grant certiorari in a case raising the question whether discrimination against gay or bisexual persons violated the equal protection guarantee. (144) Justice Brennan, joined by Justice Marshall, penned a dissent from the denial of certiorari, noting that such classifications should be subject to heightened scrutiny because the targeted group is an insular minority that has suffered from a history of discrimination and also is politically powerless, at least once its members are open about their sexual orientation. (145) The following year, in Bowers v. Hardwick, (146) the Court rejected a substantive due process challenge to a sodomy law as applied to gays and lesbians, but in a footnote made clear that it was not addressing any possible equal protection challenge to the law. (147)

It would not be until a decade later, in 1996, that the Court, in Romer v. Evans, (148) would have the opportunity to consider an equal protection challenge to a law targeting gays and lesbians. At issue in the case was the constitutionality of Amendment 2 to Colorado's Constitution, a voter initiative that both repealed existing state and local laws regarding nondiscrimination on the basis of sexual orientation and prohibited the future enactment of such laws. (149) By this point in time, the consistency principle was firmly established--Adarand had been decided the previous year-- and thus the factors identified by the Frontiero Court seemed no longer applicable. After all, why demand that a group suffer a history of discrimination and be politically powerless before extending heightened scrutiny to laws discriminating against that group only to turn around and apply the same level of scrutiny to laws discriminating against its counterpart, who not only lacked either of those qualities but used its extensive political power to impose that history of discrimination?

Thus, rather than invoking the Frontiero factors to determine whether discrimination against gays and lesbians was subject to intermediate or strict scrutiny, the Court instead first stated that "laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." (150) Next, it cited Moreno's holding that a bare desire to harm a politically unpopular group does not constitute a legitimate government interest. (151) Finally, the Court declared Amendment 2 unconstitutional on the ground that it failed rational basis review, despite a number of rationales for the law--such as protecting the associational rights of others and preserving resources to fight more serious types of discrimination (152)--that would likely have sufficed under traditional rational basis review. Writing in dissent, Justice Scalia not only explained why the law passed traditional rational basis review, but also took issue with the Court's characterization of gays and lesbians as "politically unpopular," contending that the group "enjoys enormous influence in American media and politics" and had the support of forty-six percent of those who voted on Amendment 2 despite comprising no more than four percent of the population. (153)

Had Romer represented a sporadic instance of discrimination against a group that otherwise failed to satisfy the factors the Court had previously identified for applying heightened scrutiny, it would have fit nicely in the Moreno-Cleburne line of cases as an instance of "fleeting rational basis plus" review. Yet Romer was preceded by a history of discrimination against gays and lesbians, including the presence of criminal sodomy laws that were still on the books in many states. Moreover, Romer was followed by an aggressive campaign to prohibit same-sex marriage by means not only of statutory enactments--such as the federal Defense of Marriage Act--but also numerous amendments to state constitutions banning same-sex marriage and similar legal unions. (154) Indeed, in the years since Romer was decided, the Court--or at least some portion of it--has thus far twice invoked the Moreno-Cleburne-Romer line of cases as a basis for striking down a law discriminating against gays and lesbians. (155)

First, in Lawrence v. Texas, (156) the Court once again considered a constitutional challenge to laws criminalizing sodomy. But the law at issue in Lawrence differed from that at issue in Bowers. While the latter was ostensibly applicable to all, including heterosexuals, the former applied only to same-sex sodomy. (157) Thus, Lawrence presented not only an opportunity for the Court to reconsider its substantive due process holding in Bowers, but also a clear equal protection challenge. Yet the Court, while describing the equal protection argument as a "tenable" one, opted instead to reconsider and overturn its decision in Bowers. (158)

Although the majority in Lawrence side-stepped the equal protection argument, Justice O'Connor--who was part of the majority in Bowers and did not wish to overrule that case's substantive due process holding--penned a separate concurring opinion declaring the sodomy law at issue unconstitutional on equal protection grounds. (159) Yet, like the Court in Romer, she did not consider the question whether intermediate or strict scrutiny was applicable. Rather, Justice O'Connor cited Moreno, Cleburne, and Romer as standing for the proposition that "[w]hen a law exhibits ... a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause." (160) She cabined the scope of what she characterized as a heightened form of rational basis review, noting that it is most likely to result in declaring unconstitutional laws that "inhibit[] personal relationships." (161) Justice Scalia, while disagreeing with Justice O'Connor's opinion, characterized it as a heightened form of equal protection scrutiny, noting that under the test as she articulated it, "laws exhibiting a desire to harm a politically unpopular group are invalid even though there may be a conceivable rational basis to support them." (162)

Most recently, in United States v. Windsor, (163) the Court once again considered an equal protection challenge involving discrimination against gays and lesbians, specifically, the federal Defense of Marriage Act, which defines marriage as between a man and a woman and refuses to recognize marriages validly entered into in states where same-sex marriage is lawful. Yet the Court declined to affirm the decision on the same basis as the Second Circuit, which applied the Frontiero factors to arrive at the conclusion that gays and lesbians are a quasi-suspect class and thus laws discriminating against them are subject to intermediate scrutiny. (164) Rather, the Court once again quoted Moreno's holding regarding a bare desire to harm a politically unpopular group, as well as its prior decision in Romer. (165) The Court then identified the harms DOMA inflicts on same-sex couples and declared it unconstitutional. (166) The Court did not, however, consider the various rationales for DOMA to determine whether it was sufficiently tailored to those rationales to survive rational basis, intermediate, or strict scrutiny. Indeed, unlike the Moreno, Cleburne, and Romer opinions, the Court in Windsor did not even purport to be applying rational basis scrutiny, but was instead murky on exactly what level of review it was applying, as Justice Scalia's dissent was quick to point out. (167)

While Romer, Lawrence, and Windsor each delivered victories to the gay-rights plaintiffs, the decisions suffer from the limitations Justice Marshall identified in his separate opinion in Cleburne. Specifically, the murkiness of the decisions has left lower courts "in the dark," and while this has resulted in some victories for proponents of gay rights, the Court's failure to clearly state in any of these decisions that heightened scrutiny is in play has resulted in some lower courts invoking traditional rational basis principles to reject equal protection claims brought by gays and lesbians. (168)

Moreover, with the Court having issued not one but three increasingly murky equal protection decisions involving gay rights and set to issue yet another decision in 2015, (169) this line of cases--despite its repeated citation to Moreno--is starting to look less like fleeting rational basis plus and more like the transitional rational basis plus cases that ultimately resulted in the establishment of intermediate scrutiny for laws discriminating on the basis of sex and illegitimacy. The Court's willingness to make that final step in the transition process may to some extent be hampered by what appears to be an irreconcilable tension between the Frontiero and Adarand lines of precedent. The remainder of this Article, through its analysis of the constitutionality of gayffirmative action policies, seeks to provide the Court with a roadmap for reconciling those precedents to make the prospect of declaring sexual orientation to be a suspect or quasi-suspect classification a realistic one.

II. AFFIRMATIVE ACTION AND TIERED SCRUTINY

A. Race-Based Affirmative Action and Strict Scrutiny

Between the Court's 1978 decision in Bakke and its 2013 decision in Fisher, the Court has in two different ways made it increasingly difficult for public entities to engage in race-based affirmative action. First, it has thus far identified only a handful of goals that satisfy strict scrutiny's requirement that the governmental interest be compelling, while in the meantime explicitly rejecting numerous others. Second, even when public entities have sought to further those goals the Court has recognized as compelling, strict scrutiny's requirement that the means used to accomplish those goals be "narrowly tailored" to achieving those goals--including its requirement that the state actor consider race-neutral alternatives and use race as a factor only when holistically evaluating applicants--has significantly limited the circumstances under which a race-based affirmative action policy will pass constitutional muster.

To date, the U.S. Supreme Court has acknowledged only two justifications for race-based affirmative action policies that satisfy strict scrutiny's requirement that the government have a compelling interest for drawing distinctions on the basis of race. First, a governmental entity can implement an affirmative action policy as a remedy for past discrimination. However, this form of remedial affirmative action is narrowly circumscribed; the governmental entity seeking to implement the policy cannot rely merely on general societal discrimination on the basis of race. (170) Rather, such a remedial policy satisfies the compelling interest prong of the strict scrutiny test only if the very governmental actor seeking to implement the policy was doing so as a remedy for past discrimination that the entity itself engaged in, or based on a specific finding of private discrimination within its jurisdiction of which a governmental entity was effectively a passive participant. (171) Moreover, to justify an affirmative action policy on such a basis, there must be a "strong basis in evidence" that the prior discrimination actually occurred. (172) Second, at least in the context of higher education, (173) a governmental entity can implement a race-based affirmative action policy--without pointing to a prior specific history of discrimination--on the ground that it contributes to the attainment of a diverse student body from which educational benefits flow. (174)

In addition to its rejection of general societal discrimination as a justification for implementing race-based affirmative action policies, the Court has thus far rejected three other proposed justifications for such policies. First, the Court has rejected the interest in "racial balancing," or the interest in having a workforce or classroom whose racial mix tracks racial demographics. (175) Second, the Court has rejected the "role model" theory, whereby having people of specific races in given professions--such as teaching--will allow them to serve as positive role models for children of the same race. (176) Third, the Court has held that admitting minorities into specific professional programs, such as medicine, on the theory that they will be more likely to provide needed services to minority communities, is likewise not a compelling governmental interest. (177)

Moreover, even when an affirmative action policy is enacted for the purpose of remedying specific past discrimination or furthering the interest in educational diversity, the policy must still satisfy the narrow tailoring requirement. In both contexts, this requires a serious consideration of race-neutral alternatives. (178) Furthermore, in both contexts, the use of specific quotas (179) or means that otherwise rely on race in a mechanical, nonindividualized fashion--such as awarding a certain number of points in an admissions scheme for being a member of a given race (180)--are prohibited. Rather, race can only be a factor that is part of a highly individualized analysis of each applicant. (181) In addition, the Court has indicated that race-based affirmative action policies must be time limited and thus cannot be infinite in duration. (182) Finally, the impact on non-minorities must be considered and minimized. (183)

In sum, as a direct result of the development of the consistency principle in equal protection jurisprudence, it is now extremely difficult for governmental entities to enact affirmative action policies--at least race-based ones--that will pass constitutional muster.
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Title Annotation:Abstract through II. Affirmative Action and Tiered Scrutiny A. Race-Based Affirmative Action and Strict Scrutiny, p. 733-765
Author:Nicolas, Peter
Publication:Washington University Law Review
Date:Apr 1, 2015
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