Beyond Suspect Classifications

Suspect classification analysis is dead. Or so it would seem. As is well known, suspect classification analysis and the associated tiers of scrutiny framework are the primary doctrinal features of contemporary equal protection jurisprudence. How plaintiffs fare under these twin doctrines determines the ultimate fate of their equal protection claims. Accordingly, equal protection advocates often turn their attention to suspect classification analysis in crafting their arguments. And yet, despite the profound impact of suspect classification analysis on contemporary equal protection jurisprudence, the doctrine sits much like an aging patriarch, exerting a level of control that far exceeds its actual efficacy. Indeed, suspect classification analysis was conspicuously absent in the United States Supreme Court’s most recent term, and it has been well over a quarter century since the Court last recognized a new suspect classification. The doctrine has been lambasted by scholars and jurists alike. Further, as this Article argues below, worse than being ineffective, suspect classification analysis actively inhibits the growth of equal protection jurisprudence. This raises the inevitable question: is there anything of value to be salvaged from suspect classification analysis? This Article contends that there is. Rather than reading the Court’s suspect classification jurisprudence for the discrete doctrinal innovations of any one case, this Article takes the long view in an effort to discern from these cases a political theory and associated theory of judicial review—that is, the elusive normative philosophy of the Equal Protection Clause. In taking this perspective, what emerges is a theory of judicial review in the equal protection context that focuses not on protecting minorities from the inevitable flaws of a majoritarian political process, but on protecting individuals from the social and political effects of laws that, based on objective characteristics, can be identified as tending to create and enforce permanent divisions between social classes—that is, a caste society

Beyond Suspect Classifications

Suspect classification analysis is dead. Or so it would seem. As is well known, suspect classification analysis and the associated tiers of scrutiny framework are the primary doctrinal features of contemporary equal protection jurisprudence. How plaintiffs fare under these twin doctrines determines the ultimate fate of their equal protection claims. Accordingly, equal protection advocates often turn their attention to suspect classification analysis in crafting their arguments. And yet, despite the profound impact of suspect classification analysis on contemporary equal protection jurisprudence, the doctrine sits much like an aging patriarch, exerting a level of control that far exceeds its actual efficacy. Indeed, suspect classification analysis was conspicuously absent in the United States Supreme Court’s most recent term, and it has been well over a quarter century since the Court last recognized a new suspect classification. The doctrine has been lambasted by scholars and jurists alike. Further, as this Article argues below, worse than being ineffective, suspect classification analysis actively inhibits the growth of equal protection jurisprudence. This raises the inevitable question: is there anything of value to be salvaged from suspect classification analysis? This Article contends that there is. Rather than reading the Court’s suspect classification jurisprudence for the discrete doctrinal innovations of any one case, this Article takes the long view in an effort to discern from these cases a political theory and associated theory of judicial review—that is, the elusive normative philosophy of the Equal Protection Clause. In taking this perspective, what emerges is a theory of judicial review in the equal protection context that focuses not on protecting minorities from the inevitable flaws of a majoritarian political process, but on protecting individuals from the social and political effects of laws that, based on objective characteristics, can be identified as tending to create and enforce permanent divisions between social classes—that is, a caste society

Brief of Amici Curiae Scholars of the Constitutional Rights of Children in Support of Petitioners in Obergefell v. Hodges

Supreme Court precedent establishes that the government may not punish children for matters beyond their control. Same-sex marriage bans and non-recognition laws (“marriage bans”) do precisely this. The states argue that marriage is good for children, yet marriage bans categorically exclude an entire class of children – children of same-sex couples – from the legal, economic and social benefits of marriage. This amicus brief recounts a powerful body of equal protection jurisprudence that prohibits punishing children to reflect moral disapproval of parental conduct or to incentivize adult behavior. We then explain that marriage bans punish children of same-sex couples because they: 1) foreclose their central legal route to family formation; 2) categorically void their existing legal parent-child relationships incident to out-of-state marriages; 3) deny them economic rights and benefits; and 4) inflict psychological and stigmatic harm. States cannot justify marriage bans as good for children and then exclude children of same-sex couples based on moral disapproval of their same-sex parents’ relationships or to incentivize opposite-sex couples to “procreate” within the bounds of marriage. To do so, severs the connection between legal burdens and individual responsibility and creates a permanent class or caste distinction

Amicus Brief in Obergefell v. Hodges

Supreme Court precedent establishes that the government may not punish children for matters beyond their control. Same-sex marriage bans and non-recognition laws (“marriage bans”) do precisely this. The states argue that marriage is good for children, yet marriage bans categorically exclude an entire class of children – children of same-sex couples – from the legal, economic and social benefits of marriage. This amicus brief recounts a powerful body of equal protection jurisprudence that prohibits punishing children to reflect moral disapproval of parental conduct or to incentivize adult behavior. We then explain that marriage bans punish children of same-sex couples because they: 1) foreclose their central legal route to family formation; 2) categorically void their existing legal parent-child relationships incident to out-of-state marriages; 3) deny them economic rights and benefits; and 4) inflict psychological and stigmatic harm. States cannot justify marriage bans as good for children and then exclude children of same-sex couples based on moral disapproval of their same-sex parents’ relationships or to incentivize opposite-sex couples to “procreate” within the bounds of marriage. To do so, severs the connection between legal burdens and individual responsibility and creates a permanent class or caste distinction

Brief for Amici Curiae Scholars of the Constitutional Rights of Children in Support of Respondent Edith Windsor Addressing the Merits and Supporting Affirmance

This amicus brief filed by Scholars of the Constitutional Rights of Children turns the spotlight on children in same-sex families. The brief enumerates the ways Section 3 of DOMA impairs children\u27s interests by denying federal recognition of their parents\u27 marriages

Unconstitutional Animus

It is well established that animus can never constitute a legitimate state interest for purposes of equal protection analysis. But neither precedent nor scholarship has stated conclusively how animus is properly defined, what counts as evidence of animus in any given case, or the precise doctrinal significance of a finding of animus. The U.S. Supreme Court has explicitly addressed the question of animus only a handful of times, and these cases do not appear to be particularly congruent with one another, at least on the surface. Further, while a number of scholars have discussed animus in terms of moral philosophy, no one has attempted to articulate a unified theory of animus as a matter of doctrine—particularly in the post-Lawrence era. This Article systematically examines Supreme Court precedent to distill a coherent standard for identifying the presence of animus in various forms of state action. What emerges is that the animus analysis the Court actually employs provides a more vigorous alternative to the thoroughly criticized “tiers-of-scrutiny” framework, which has defined and limited the scope of contemporary equal protection jurisprudence. In short, the doctrine of unconstitutional animus gives life to the strong anti-caste mandate of the federal Equal Protection Clause. The time is ripe to understand the nature of unconstitutional animus, as animus may well play a critical role in the Court’s decisions on the constitutionality of different forms of prohibitions against same-sex marriage

Marriage Equality, \u3ci\u3eUnited States v. Windsor\u3c/i\u3e, and the Crisis in Equal Protection Jurisprudence

The article discusses equal protection jurisprudence in America in relation to the U.S. Supreme Court\u27s (USSC\u27s) ruling in the 2013 marriage equality case United States v. Windsor. The views of USSC Justice Anthony Kennedy are mentioned, along with an unconstitutional animus legal doctrine and a heightened rational basis standard of review. The U.S. Constitution\u27s Equal Protection Clause is addressed in relation to the nation\u27s discrimination laws