by Zachary Herz

We are living in a Constitutional moment. In the span of half a century, LGBT people have been cast out, tolerated, accepted, and finally celebrated: In time with that shift, same-sex marriage has gone from absurdity, to threat, to fundamental right. This Article queries the links between those two processes and their potential implications for constitutional anti-discrimination law more broadly.

Specifically, this Article considers two features of equal protection jurisprudence that have entered into strange, silent conflict: the discriminatory purpose doctrine established in Washington v. Davis and Personnel Administrator of Massachusetts v. Feeney, and the tendency of courts to treat same-sex marriage bans as straightforward sexual-orientation discrimination. According to a strict reading of this doctrine, same-sex marriage bans would only disproportionately impact gays and lesbians while facially classifying on the basis of sex. This Article shows how courts on both sides of the issue, uncomfortable with the implications of the discriminatory-purpose doctrine when applied to such bans, largely ignored discriminatory purpose in favor of analytic frameworks that better reflect the social realities of the same-sex marriage debate. This Article then considers Justice Kennedy’s treatment of the classification problem in Obergefell v. Hodges, and the possible ramifications of Kennedy’s holding that same-sex marriage bans demean gays and lesbians for the future of anti-discrimination law.


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