In or Out? Groups and the Fourteenth Amendment after Lawrence v. Texas


This article explores a line of Supreme Court cases that have struck down state laws using a rigorous form of rational basis scrutiny, culminating in Lawrence v. Texas. The facts of these rigorous rational basis cases are diverse, but they share a common denominator: the Court has applied more rigorous rational basis scrutiny when a government has restricted the liberties of, or denied some state benefit, to a group—specifically, gays, lesbians, persons with disabilities, illegal immigrant children, and hippies.

Rigorous rational basis scrutiny has not wholly supplanted regular rational basis scrutiny. Courts still use regular rational basis scrutiny to review (and to uphold) state laws that prohibit some class of activities or deny benefits to some class of persons. This fact creates a puzzle because the Court has never explained when a law’s classification scheme will trigger rigorous rational basis scrutiny. As the trial court in In re: Marriage Cases recognized earlier this week when it struck down California’s ban on gay marriage, “The nature of the classification” is the key to determining whether a law’s classification scheme is constitutionally permissible.

Unless we are willing to resign ourselves to the group version of Justice Potter Stewart’s “we know it when we see it” obscenity standard, we have to identify what characteristics of a group justify the application of rigorous rational basis scrutiny. This article creates criteria for identifying when and which groups merit the special protection rigorous rational basis scrutiny offers.


Civil Rights and Discrimination | Constitutional Law | Public Law and Legal Theory | Sexuality and the Law

Date of this Version

March 2005