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Discrimination Are on the Foundation of Sexual Orientation


The constitution guarantees that no individual or group of people shall be deprived of the same safeguard of the law as compared to the benefits enjoyed by other individuals or groups in comparable circumstances in their existence, freedom, or pursuit of pleasure. According to constitutional provisions, it is clear that all people are protected equally and that their Maker provides some inalienable Rights, which encompass autonomy, life, and search for happiness. Perceptions of equal protection and impartiality in the US are as old as the nation itself. The case of Romer vs. Evans in 1996 was a milestone in the US cases handling sexual orientation and national laws. The case was the initial Supreme Court case to tackle gay issues after the case of Bowers, where the Court affirmed that decrees illegalizing same-sex marriages were legitimate. The Court reached it verdict in a six-three ruling that an amendment seeking to protect homosexuality and bisexuality failed to gratify the Equal Protection Clause. The verdict in the case of Romer affirmed that the modification did not have a coherent connection to legitimize national concerns, and the dissent declared that the majority clearly concurs that rational foundation, the common assessment for conformity with the Equal Protection Clause, is the regulating norm. The verdict in the case of Romer prepared the ground for the case of Lawrence vs. Texas in 2003, when the judges ruled against their conclusion in the case of Bowers. Later, the Supreme Court struck down Section three of the Defense of Marriage Act (DOMA). This study seeks to evaluate the present equal protection framework where claims of discrimination on the foundation of sexual orientation are assessed and discuss the level in the equal protection scrutiny system where sexual orientation ought to be located.

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Analysis of the Current Equal Protection Framework

The equal protection framework is a section of the 14th Amendment to the US Constitution. The equal protection clause started functioning in 1868 and stipulates that no state can abnegate the equal protection of the regulations to any individual in its jurisdiction. Some principal motives for the equal protection framework are to legalize and effect the equality stipulations. The verdict by the Court in the case of Romer vs. Evans in 1996 cut down a legal alteration that sought to deny homosexuals minority position, quota inclinations, protected standing, or an assertion of inequity. The Court snubbed as farfetched the dissent’s view that the amendment could not divest homosexuals of vital protections offered to every person, but instead could just stop the exceptional handling of homosexuals. In this regard, the verdict in the case of Romer appeared to apply a noticeably greater rate of scrutiny as compared to the supposedly used rational-basis evaluation. In the case of Lawrence, the judges canceled an extant decree illegalizing sex amid gay men in accordance with substantive due process (SDP) basis. Nevertheless, in Judge Sandra Day’s view agreeing with the decree, she asserts that through illegalization of just homosexual sodomy, without illegalizing heterosexual sodomy too, Texas’ law failed to satisfy rational-grounds review under the equal protection framework. The view by Sandra Day prominently referred to the City of Cleburne and in a way depended on the case of Romer. Particularly, the view by Sandra Day did not appear to employ a greater extent of scrutiny than just rational grounds, and the Court had not expanded suspect-category position to sexual orientation.

Though the courts have employed rational-grounds scrutiny to categorizations anchored in sexual orientation, it has been emphasized that discrimination rooted in gender ought to be transformed to encompass discrimination founded on sexual orientation where a different level of scrutiny could relate to gay rights instances. Some researchers differ, affirming that homophobia is different from sexism, in a sociological perspective, and, therefore, handling it like that would be an intolerable legal cutoff. Last year, the judges canceled a section of the DOMA regulations in the case of US vs. Windsor. In this case, none of the state decrees was under consideration, and thus the undiscriminating protection framework was not applicable. Nonetheless, the Court used comparable laws in conjunction with federalism standards. The court failed to assert employing any extent of scrutiny more severe than rational foundation evaluation. The 4 dissenting judges affirmed that the creators of the law were rational.

The discord concerning the meaning of the equal protection framework has brought about sharply divided decisions concerning whether the equal protection framework restricts the state-supported discrimination based on sex and sexual orientation. In this regard, Judge Anthony Kennedy has regularly, though not at all times, supported the Court’s liberal position, offering a practical but to some extent doubtful basis for protection against discrimination anchored in sexual orientation. This section of the regulation has been astoundingly silent in the past decade though it is currently becoming ignited at a fast rate as cases concerning same-sex marriages for lesbians and gay men pile up in the federal courts. Recently, in the case of Perry vs. Brown, the Court of Appeals was convinced that Proposition 8, which altered the constitution to abnegate lesbians and gay men the consent to get married to a person of their preference, breached the equal protection framework. This is because it deprived them of a right anchored in bad blood and discrimination and was irrationally associated with any legal, governmental concern. Thus, proposition 8 does not serve any function and bears no impact rather than to reduce the position and pride of lesbians and gays, and to publicly reclassify their associations and families as lesser than the ones of heterosexual partners.

In mid-2012, it was commonly agreed that the stipulations of the Defense of Marriage Act that abnegate federal marriage gains to the married homosexual partners infringe the equal protection framework indicated in the Due Process Clause. The decision of the majority, initiated by well-esteemed conservative Judge Boudin, employed what may be termed as rational ground evaluation. Instead of arousing an advanced level of legal scrutiny, as affirmed by the Obama Justice Department, Boudin asserted that the equal protection framework standards forbid state and national governments from discriminating against a traditionally deprived or disliked grouping for rationales that are weak, unsupported, or inadmissible.

Judge Kennedy did not just exert the determining ballot on the Supreme Court in equal protection basis; he as well appeared dedicated to shift the Court off the levels of scrutiny framework toward a more alert assessment of whether regulations inappropriately discriminate against the residents of the US. In this regard, Judge Kennedy started affirming such opinions where he composed a considerable agreeing view, highlighting that legal text and account backed the holding of the Court. Judge Kennedy viewed that the initiators of the 14th Amendment spurned a parity assurance that outlawed just racial discrimination in support of an extensive guarantee scripted in more comprehensive terms, widening the guarantee of the equal protection of the regulations to every person, irrespective of sexual orientation. The neutral formulating of the equal protection framework, broadening out its guarantee to every person, discloses its interest with the rights of the residents. At the center of the constitution’s assurance of equal protection is a simple control that the government has to handle its residents as individuals and not as elements of an ethnic or sexual group.

In the case of Romer vs. Evans, Judge Kennedy instigated the six-three verdict by the court that affirmed that Amendment 2, which outlawed state and national government endeavor to defend lesbians and gay men from discrimination, infringed the equal protection provisions. Terming the discrimination against lesbians and gay men contained in amendment 2 as an extensive exclusion of a group of people from the right to gain the protection of the constitution, Judge Kennedy asserted that the equal protection framework demands the impartiality of the law where the rights of the people are at risk. The law should prohibit the government from discriminating against some citizens anchored in animus toward the group of people affected. Employing the initial rules, the Court affirmed that Amendment 2 was an evident abnegation of equal protection, a position-anchored enforcement that abnegates equal protection of the law to lesbians and gay men by making them appear as inferior to everybody else.

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Significantly in Romer, the view of Judge Kennedy for the Court failed to hold that discrimination based on sexual orientation is a constitutionally suspicious categorization demanding stringent scrutiny (similar to instances of racial discrimination) or intermediate scrutiny (like in concerns of gender discrimination). The Court indeed has never affirmed the principle of evaluation appropriate to regulations that discriminate anchored in sexual orientation, and Judge Kennedy avoided the issue in Romer. As an alternative, the majority standpoint by Judge Kennedy affirmed that Amendment 2 could not endure rational basis review, deeming deliberation of a greater extent of scrutiny unwarranted. Though rational basis scrutiny appears regardful, Judge Kennedy asserted that even the most negligible extent of equal protection examination fails to allow indiscriminate enactment of disproportions created out of animus to the affected groups of people. In coining the regulation based on rational basis scrutiny, the focus ought to be on the significance of equal instead of extending the judicially-made levels of evaluation.

On the contrary, there were arguments that Amendment 2 never infringed the equal protection stipulations since the government has a legal concern in upholding conservative sexual traditions against the influences of a politically strong minority to alter those traditions. The Court was mistaken to handle Amendment 2 as a kind of unpleasant discrimination meant to single out lesbians and gay men. Apart from the people that believe the constitution is amended to befit present approaches, Amendment 2 was a constitutionally admissible attempt to bar gradual weakening of the sexual ethics supported by the majority of residents, in accordance with the traditional account of ethical disfavor of homosexual behaviors. In brief, because the Constitution does not say anything concerning this topic, it is left to be determined through ordinary democratic methods, encompassing the democratic implementation of stipulations of national constitutions.

While disagreeing, some judges likened the attempts of the residents to react to the rising political might of lesbians and gay men to nineteenth century state constitutional alterations that prohibited polygamy with the purpose of preserving sexual ethics in opposition to the attempts of a geographically focused and politically strong minority to weaken it. In this regard, state governments had no weaker extensive supremacy to articulate ethical indignation at homosexuality. As made apparent in this study, the judges of the courts have been greatly at odds over the significance of the equal protection assurance in instances concerning discrimination based on sexual orientation.

Most of the people have the conviction that the equal protection framework signifies what is indicated; that it is an extensive guarantee of equally protecting all individuals living in the US. This ought to be enhanced through forbidding states from abnegating lesbians and gay men equal protection and chances, and handling them in capacities of substandard individuals, whether anchored in conventional deliberation, prejudice, or animosity. Every one of these views was initiated or supported by Judge Kennedy, who currently embraces the balance of power on the Court in instances introducing these concerns. Disagreeing in all such instances, it could be affirmed that the equal protection framework ought to be implemented to preserve longstanding progressions of the US residents and safeguard conventional ideas of ethics. Beyond the perspective of race, some judges could affirm that equal protection stipulations defend conventional conducts of the states, encompassing the ones that discriminate based on sexual orientation. Such cases, certainly, were ruled, but there are explanations of thinking that the error lines have not vanished. In reality, the judges remain greatly polarized concerning the significance of the legal assurance of equal protection.

In opposition to this perspective, the Court is inclined in the future to weigh in on the most significant equality battle of this cohort, the efforts by lesbians and gay men for same-sex marriages. In the court cases, the courts of appeal will definitely follow the third way in cancelling intolerant marriage rules, affirming that such regulations abnegate lesbians and gay men the appropriate protection of the regulations by abnegating them equal rights devoid of any proper legal explanation. The lawmakers ought to take part deeply in a careful assessment of whether the given regulations inappropriately discriminate against the residents of the US, and cancel the inappropriate regulations based on rational basis scrutiny, instead of declaring a tougher way of appraisal for state-supported discrimination anchored in the foundation of sexual orientation. The concern now is whether the discriminatory laws would be seen as suitable with the consideration of the case of Romer, should any other comparable case get to the Court.

There is a strong expectation to think that discriminatory laws would be found unsuitable and struck down. The efforts of Judge Kennedy give anticipations of the possible cancellation of Proposition 8 and the federal section of the Defense of Marriage Act as an infringement of the constitutional assurance of equal protection under the constitution and equality for the rights of every resident without discrimination. Under the equal protection framework, states are not supposed to abnegate the rights of lesbians and gay men in a free civilization as this makes them discriminated against. Undeniably, some of the views initiated by Judge Kennedy are ambiguous. Some of his views express his readiness to support the Court’s traditional wing in the equal protection framework and uphold some distinctions based on gender. Possibly even more significant, with respect to Perry, are the views by Judge Kennedy for the court in the case of Lawrence vs. Texas. His views sought to cancel a Texas illegal sodomy decree under the Due Process stipulations of the 14th Amendment, explicitly setting aside the question of same-sex marriage, considering that the case did not entail whether the government has to offer formal identification to any association that homosexual people try to go into.

Nevertheless, Judge Kennedy harmonizes his views in the case of Romer and Lawrence, but he will have to deal with opinions, liable of being made by other judges, that the constitution does not state anything with regard to marriage equality. Anchored in his past differing views, some judges are liable of taking the perception that a decision of canceling state invidious sexual orientation laws has no legal foundation and could be incompatible with the traditional comprehension of the equal protection framework and roughly out of accord with the recognized conception of marriage and ethics. In a nutshell, the interest in the aforementioned cases and analysis of the equal protection framework could not be greater, arousing the elemental issue of whether the constitution, indeed, safeguards the equality of every person or allows state-supported discrimination against lesbian and gay people. In the equal protection framework, with respect to the vital current cases involving discrimination against sexual orientation, the Supreme Court has affirmed that the law extensively assures equality to every individual and forbids states from handling lesbians, gay men, bisexuals, or even heterosexuals as inferior people. The question that lingers is whether the constitution and the courts will pursue equal protection of all without discrimination or they will try to create some exceptions.

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Level in the Equal Protection Scrutiny System Where Sexual Orientation Should Be Located

In the case of Romer vs. Evans, the United States Supreme Court evaluated a state constitutional change that forbid any department of the state or national government from engaging in actions planned to discriminate on people anchored in their sexual orientation, that is, heterosexual, bisexual, or homosexual orientation. The instant impact of the constitutional change, identified universally as Amendment 2, was to revoke every extant law, decree, act, and governmental strategy that prohibited discrimination anchored in sexual orientation. With respect to Amendment 2, state representatives and private bodies would have been allowed to discriminate against sexual preferences, particularly homosexuals, in different sectors that encompass insurance, accommodation, employment, and safety services.

Some states supported Amendment 2 by affirming that it did not do anything more than positioning lesbians, gay men, and bisexuals on an equal playing ground with every other citizen. Consistent with amendment 2, homosexuals and bisexuals were abnegated any exceptional rights. Nevertheless, the Supreme Court differed, asserting that Amendment 2 infringed the equal protection framework since it recognized individuals by a single attribute and then abnegated them protection extensively, which is a thing unequaled in the law. In trying to convince a 6-person majority, Judge Kennedy affirmed that equal protection of the constitution is not accomplished via discriminatory enactment of inequities. Other judges articulated that the esteem for equal protection illustrates why regulations discriminating against a group of people for disadvantaged legal position or common difficulties are infrequent. As emphasized by Judge Kennedy, Amendment 2 is unconstitutional since any regulation that makes it hard for a category of people and not another to obtain favor from the government is an abnegation of equal protection of the regulations in the most actual manner.

Before 1976, the judges in the United Sates normally used to handle discrimination through the use of a couple of tiers of analysis that include strict scrutiny (where a suspicious group or basic right is entailed), and a more soft tier called rational basis scrutiny. Strict scrutiny signifies that a challenged decree has to be closely modified to accomplish a persuasive government concern and has to have a minimally restraining option. On the contrary, rational basis review only demands that a challenged decree be rationally associated with the legal government concern. Nevertheless, in the lawsuit concerning Craig, the judges created an additional level of analysis referred to as intermediate scrutiny that is interested with handling gender bias; around the same period, the judges also created other levels of review like the enhanced rational basis scrutiny. The term heightened scrutiny is at times applied in referring to the intermediate scrutiny. In the United States constitutional law, intermediate scrutiny denotes the second level of settling cases by means of judicial examination.

Even though Courts have used the rational basis scrutiny to cases on sexual orientation, discrimination rooted in gender should encompass discrimination founded on sexual orientation for the application of intermediate scrutiny (heightened scrutiny), the second level in the equal protection scrutiny system. To triumph over intermediate scrutiny, it has to be demonstrated that the law or strategy being tested promotes a significant government concern in a manner that is considerably associated with that concern. This ought to be differentiated from strict scrutiny, the higher level of scrutiny that demands closely modified and minimally limiting methods to promote a persuasive governmental concern. In its denial to safeguard numerous cases against section 3 of the DOMA, the Obama government affirmed that intermediate scrutiny is the suitable level in the equal protection scrutiny system to relate to decrees that discriminate on grounds of sexual orientation.19

In the case of Lawrence, the judges of the United States Supreme Court canceled anti-gay regulations as unlawful, openly annulling its decision in the case of Bowers, but never specified the level in the equal protection scrutiny system that had been applied. In 2008, the Supreme Court in California applied strict scrutiny principle in a case dealing with discrimination based on sexual orientation. This was definitely a wrong move as the court ought to have applied intermediate scrutiny. Towards the end of 2012, the Court of appeals turned into the initial national appeals court, in the case of Windsor vs. US, to affirm that regulations that categorize individuals anchored in sexual orientation ought to apply intermediate scrutiny. In January 2014, the Court of appeals made a ruling in the case of SmithKline Beecham Corporation vs. Abbott Laboratories by affirming that intermediate scrutiny ought to be applied in discrimination anchored in sexual orientation. To sum it up, it is clear from the given explanations that the second level in the equal protection scrutiny system, intermediate scrutiny, ought to be employed in cases dealing with discrimination anchored in sexuality.


The constitution ought to ensure that no individual or category of people shall be shorn of the same safeguard of the law when judged against the gains enjoyed by other individuals. Consistent with constitutional provisions, it is apparent that all people are protected uniformly. The case of Romer vs. Evans was a milestone in US cases covering sexual orientation and national decrees; it was the initial Supreme Court case to embark upon gay rights after the case of Bowers vs. Hardwick, when the Court established that laws illegalizing sodomy were valid. The outcome in the case of Romer set up the ground for the case of Lawrence vs. Texas in 2003, when the judges ruled in opposition to their conclusion in the case of Bowers. The Equal Protection Clause requires no state to abnegate undiscriminating protection of the regulations to the residents in its territory. The prime causes for the equal protection framework are to legalize and effect the equality stipulations. Under the equal protection framework, states are not expected to abnegate the rights of the people based on sexual orientation in a free civilization as this creates room for discrimination. The issue that lingers is whether the constitution and the courts will practice equal protection of all with no discrimination or they will attempt to create some exceptions. Even though Courts have at times exercised the rational basis scrutiny to cases of discrimination based on sexual orientation, intermediate scrutiny (heightened scrutiny), the second level in the equal protection scrutiny system, is the one appropriate.


Bower, Chris. “Juggling rights and utility: A legal and philosophical framework for analyzing same-sex marriage in the wake of United States v. Windsor.” California Law Review 102, no. 4 (2014): 971-1014.

Conkle, Daniel. “Evolving values, animus, and same-sex marriage.” Indiana Law Journal89, no. 1 (2014): 27-42.

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Nicolas, Peter. “Gay rights, equal protection, and the classification-framing quandary.” George Mason Law Review 21, no. 2 (2014): 329-379.

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