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57 S. Cal. L. Rev. 797 (1983-1984)
An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality

handle is hein.journals/scal57 and id is 811 raw text is: An Argument for the Application of
Equal Protection Heightened
Scrutiny to Classifications
Based on
For over a decade, the United States Supreme Court has extended
special judicial protection to members of certain groups' in the name of
equal protection. The special protection the Court has developed is in
the form of intermediate levels of scrutiny that are stricter than the
usual standard of review the Court gives challenged statutes, but are
less demanding than the strict scrutiny the Court applies to suspect
classifications.2 The Court has applied these intermediate levels of
scrutiny to certain classifications that seemingly are based on un-
founded prejudice or stereotypes. Although the rationale for the differ-
ent levels of scrutiny is unclear,3 the results of the current doctrine are
desirable: courts have struck down as violating equal protection cer-
tain forms of governmental discrimination that, at least intuitively,
seem bad.
This Note argues that courts should apply equal protection height-
ened scrutiny to classifications based on homosexuality4 on the premise
1. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 729-30 (1982) (gender);
Plyler v. Doe, 457 U.S. 202, 223-24 (1982) (minor children of illegal aliens); Mills v. Habluetzel,
456 U.S. 91 (1982) (illegitimate children); Graham v. Richardson, 403 U.S. 365, 372, 376 (1971)
2. See infra notes 75-91 and accompanying text.
3. Constitutional commentators have articulated a wealth of theories, but none are satisfy-
ing. Tushnet, Truth, Justice, and the American Way. An Interpretation ofPublic Law Scholarshp
in the Seventies, 57 TEx. L. REV. 1307, 1322-45 (1979). Professor Larry Simon addresses the
problems with most of the current theories in Simon, The Authority of the Constitution and Its
Meaning: A Preface to a Theory of Constitutional Interpretation passim (May 1984) (unpublished
manuscript forthcoming in Volume 58 of the Southern Calfornia Law Review).
4. A homosexual or gay is a person who is motivated in adult life by a definite preferential
erotic attraction to members of the same sex and who usually (but not necessarily) engages in
overt sexual relations with them. Marmor, Overview: The MAultple Roots ofHomosexual Behav-
ior, in HoMosExuAL BEHAVIOR 3,5 (J. Marmor ed. 1980). This Note uses gay synonymously with
homosexual, although some commentators use gay to refer only to male homosexuals, e.g., Jondt

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