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In striking the ban on same-sex marriage in Obergefell v. Hodges, the Supreme Court avoided tiers of scrutiny, thus declining to apply rational basis in a non-deferential manner as it had in other cases involving sexual orientation. In oral argument in Fisher v. University of Texas, the Court signaled its growing discomfort with the Grutter v. Bollinger strict scrutiny doctrine, which affords a level of institutional deference in tension with narrow tailoring and least restrictive means. And although the Court claims to apply intermediate scrutiny in gender-based equal protection cases, the cases devolve de facto applications of strict scrutiny or rational basis, based on whether the Court claims a real-sex difference or an overbroad gender-based generalization.

The tiers-of-scrutiny doctrine has evolved from two to three formal tiers, yet a closer reading suggests five applied tiers. As a basis for prediction, the tiers are inverted, producing the following counterintuitive sequence: strict scrutiny, rational basis plus, intermediate scrutiny, strict scrutiny lite, and rational basis. The result has been doctrinal confusion, a lack of predictability, and calls by leading scholars and jurists for abandonment or fundamental reform.

This Article offers a theoretical account for why tiers of scrutiny should not be jettisoned and why the existing scheme, as applied to race, sexual orientation, and gender, has produced anomalous — perhaps even disingenuous — applications. It further demonstrates how a modest re-conception operating within the general framework of existing tiers can greatly simplify applications, avoid the most critical anomalies, and thereby improve doctrinal predictability and coherence.

Publication Citation

19 University of Pennsylvania Journal of Constitutional Law 1043 (2017).


Constitutional Law | Law