Baby, We Were Born This Way: The Case for Making Sexual Orientation a Suspect Classification Under the Equal Protection Clause of the Fourteenth Amendment

Authors

Jennifer R. Covais, Touro Law Center

Abstract

Currently, the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution provides minimal constitutional safeguards against discrimination based on sexual orientation. Laws that treat queer Americans differently than their straight counterparts are presumptively constitutional if those laws bear a rational relationship to any legitimate government interest. Consequently, states may limit same-goods and services of certain businesses, and qualify for government programs. The Supreme Court established enhanced equal protection guarantees for classifications based on race, ethnicity, and national origin which are deemed suspect classifications. These classifications will only survive judicial review if the government proves the law is necessary to achieve a compelling government interest. Classifications based on race, ethnicity, or national origin rarely meet this high legal burden, making it nearly impossible for states to discriminate based on these protected categories. However, the Supreme Court has never extended these protections to any other category of people, despite having ample opportunity to do so.

To achieve suspect classification status, the Court will ask whether the particular group “(1) constitutes a discrete and insular minority; (2) has suffered a history of discrimination; (3) is politically powerless; (4) is defined by an immutable trait; and (5) is defined by a trait that is generally irrelevant to one’s ability to function in society.”1 Sexual orientation meets all five categories based on the LGBTQ+ community’s longstanding history of oppressive government laws and regulations, inability to exert significant power through the democratic process, and the inability of a person’s sexual orientation to change. This Note argues that the Court must now extend enhanced constitutional protections to queer communities as the pillars of equal protection jurisprudence demand it.

Recommended Citation

Covais, Jennifer R. (2022) "Baby, We Were Born This Way: The Case for Making Sexual Orientation a Suspect Classification Under the Equal Protection Clause of the Fourteenth Amendment," Touro Law Review: Vol. 38: No. 1, Article 11.
Available at: https://digitalcommons.tourolaw.edu/lawreview/vol38/iss1/11