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Assimiliationist Bias in Equal Protection: The Visibility Presumption and the Case of Don\u27t Ask, Don\u27t Tell

By Kenji Yoshino


Equal protection heightened scrutiny jurisprudence currently privilegesthe talismanic classifications of race and, to a lesser extent, sex. Inconsidering arguments that other classifications be accorded heightenedscrutiny, the courts have required claimants to demonstrate the similaritiesthese classifications share with race and sex. Commonalities between thetwo paradigm classifications thus play a powerful gatekeeping role.Two commonalities emphasized by the courts are that race and sexostensibly mark individuals with immutable and visible traits. Aclassification will therefore be less likely to receive heightened scrutiny ifits defining traits can be altered or concealed. By withholding protectionfrom these classifications, the judiciary is subtly encouraging groupscomprised by such classifications to assimilate by changing or hiding theirdefining characteristic. This is an assimilationist bias in equal protection,which I will critique in this Article

Topics: equal protection, queer, Civil Rights and Discrimination, Law, Legal Writing and Research
Publisher: Yale Law School Legal Scholarship Repository
Year: 1998
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