Collapsing Suspect Class with Suspect Classification: Why Strict Scrutiny is Too Strict and Maybe Not Strict Enough

While scholarly work often analyzes the nature and scopeof the Court's tiers of scrutiny approach to enforcingequality, this Article examines the underlying theory ofequal protection. This Article mounts a challenge to thetheory of higher scrutiny, and, in particular,strict scrutiny.It seeks to analyze two questions: (1) What principles triggerheightened scrutiny? and (2) Why does the Court need tosubject laws that discriminate on the basis of race to strictscrutiny? The first question concerns the underlying theoryof equal protection doctrine: the "what" of higher scrutiny.Scholarly work that seeks to answer this question rightlydistinguishes between principles of antidifferentiation andantisubordination, principles that underlie the Court'sthreshold decision to impose higher scrutiny. Yet this lineof reasoning fails to realize that the Court endorses neither.By collapsing a suspect class analysis-a focus on anti-subordination-with a suspect classification one--a focuson anti-differentiation, the Court's jurisprudence pervertsboth.

It points to an inconsistent theory of reviewinglegislation. This is a novel critique of equal protectiondoctrine, one that has hithertogone unnoticed.The second question concerns the purpose or goal of strictscrutiny: the "why" of such scrutiny. Once we have decidedthat strict scrutiny is necessary, what is it meant toaccomplish? Here this Article focuses only on the doctrineof strict scrutiny.

Drawing from case law and John Ely'sclassic defense of judicial review, it argues that the answerto the "why" question is about either remedying democraticdefects of representation or distinguishing between benignpurposes on one hand and racist or nefarious ones on theother. If this is the why of strict scrutiny, it turns out to be both too strict and not strict enough. While scholars rightlycriticize the Court for failing to deploy strict scrutiny incertain cases, namely those where unconscious racism maybe afoot, they do not home in on the cost in deploying it.This Article argues that strict scrutiny is too strict, becauseit invalidates a wide range of laws that seek to better thestatus of racial minorities. Framing Justice Harlan'sdissent in Plessy v. Ferguson (1896) in a novel light, itargues that a rational review analysis is sufficient to do thedistinguishing work in cases where a law faciallydiscriminates on the basis of race.

This Article draws fromthe recent decision by the Ninth Circuit Court of Appeals inPerry v. Brown (9th Cir. 2012) invalidingProposition8, theCalifornia constitutional amendment defining marriagebetween a man and a woman, to buttress this claim of thesufficiency of a rational review analysis. After all, if such areview can invalidate legislation based on homophobia,mere hostility to gays and lesbians, it can invalidatelegislation based on racism, mere hostility to racialminorities. This Article concludes that strict scrutiny, as itis currently understood, is too blunt an instrument.

Wemust be careful in deploying it, precisely because it standsat the center of our dual commitments to democracy andjudicial review.