'Not Without Political Power': Gays and Lesbians, Equal Protection, and the Suspect Class Doctrine

Abstract

The Supreme Court utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictory. Nevertheless, this factor has become salient in recent equal protection cases brought by gays and lesbians. Indeed, the Court is currently reviewing a court of appeals case that applies this doctrine and finds that gays and lesbians constitute a quasi-suspect class. Recent scholarship and case law have addressed the inefficiencies of suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and the emerging scholarship and case law that respond to it. This Article offers two alternatives approaches that could inform a new theory of equal protection.