Formalism: From Racial Integration to Same-Sex Marriage

Parents Involved in Community Schools v. Seattle School District, No. i concerned racial integration in public schools; however, the case has a doctrinal impact that extends beyond the context of race, extending specifically to same-sex marriage. Ironically, the five Supreme Court Justices who formed a majority in the casefour of whom are commonly labeled social conservatives - bolstered the case for same-sex marriage. They did so by introducing a new exercise of formalism to equal protection analysis. Specifically, they created doctrine that supports the argument that same-sex marriage bans warrant heightened scrutiny because such bans discriminate on the basis of sex.

This Article explains this doctrinal development and evaluates the doctrine's strengths and weaknesses as a normative matter.