"Copyright 1985, the Harvard Law Review Association"

LENGTH: 16692 words

NOTE: THE CONSTITUTIONAL STATUS OF SEXUAL
ORIENTATION: HOMOSEXUALITY AS A SUSPECT
CLASSIFICATION.

 TEXT:
   [*1285]   Even within a "nation of
minorities," n1 American gay people n2
constitute a minority group that at once elicits
an extraordinarily high degree of fear and
contempt from society at large n3 and receives
an inordinately low degree of state protection
from the institutionalization of that antipathy.
 Gay lobbyists and litigants have found little
refuge in legislatures and courts: private gay
sexual activity remains a criminal offense in
many states, n4 and anti-discrimination
legislation rarely   [*1286]   encompasses
sexual orientation. n5 As a result, gays suffer
discrimination in virtually every social sphere.
 They are denied jobs, n6 housing, n7 custody of
their children, n8 and the right to marry. n9
They are forced to deny or disguise their
identity in order to enjoy rights and benefits
routinely accorded heterosexuals.

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   n1 Marshall, A Comment on the
Nondiscrimination Principle in a "Nation of
Minorities," 93 YALE L.J. 1006, 1011 & n.11
(1984) (quoting Regents of the Univ. of Cal. v.
Bakke, 438 U.S. 265, 292 (1978) (opinion of
Powell, J.)).

   n2 This Note uses the adjective "gay" instead
of "homosexual" because it is the designation
preferred by the gay community.  Although
"lesbian and gay" is better still, it is too
cumbersome for this piece.  Except where
otherwise distinguished, "gay" and
"homosexuality" denote the sexual orientation of
both gay men and lesbian women.

   n3 The prevailing social censure of
homosexuality is illustrated by the common use
of derogatory words denoting homosexuality to
express general contempt, by the denouncement
and disapproval of homosexuality by many
religious leaders, and by the incidence of
unprovoked violence against gays.  Religious
leaders often ground their opposition to
homosexuality on the Old Testament passages in
Leviticus 18:22 and 20:13, which proscribe male
homosexuality. Opposition to homosexuality may
cut across sectarian lines: for example, the
Salvation Army, the Roman Catholic Archdiocese
of New York, and Agudath Israel jointly filed
suit to challenge Mayor Koch's executive order
compelling city contractors to certify that they
do not discriminate on the basis of sexual
orientation.  See Under 21 v. City of New York,
No. 15046/1984 (N.Y. Sup. Ct. Sept. 5, 1984)
(invalidating the mayor's order).  For a
discussion of violence against gays, see Harry,
Derivative Deviance: The Cases of Extortion,
Fag-Bashing, and Shakedown of Gay Men, 19
CRIMINOLOGY 546 (1982), which describes the most
common forms of victimization of gay men as
examples of "derivative deviance" -- the general
victimization of socially stigmatized individuals.

   n4 Twenty-three states and the District of
Columbia still have in force criminal statutes
proscribing private, consensual sodomy.  Most of
the remaining 27 states have abandoned their
criminal statutes in the past 15 years, usually
be legislative repeal, though occasionally by
judicial fiat.  See Rivera, Book Review, 132 U.
PA. L. REV. 391, 410 (1984) (reviewing J.
D'EMILIO, SEXUAL POLITICS, SEXUAL COMMUNITIES:
THE MAKING OF A HOMOSEXUAL MINORITY IN THE
UNITED STATES, 1940-1970 (1983)).  The Supreme
Court has affirmed, albeit ambiguously, the
constitutional validity of such statutes.  See
Doe v. Commonwealth's Attorney, 403 F. Supp.
1199 (E.D. Va. 1975) (three-judge court)
(Virginia criminal statute proscribing
consensual sodomy does not violate
constitutional right of privacy), aff'd mem.,
425 U.S. 901 (1976). Because the Court affirmed
without opinion, it remains uncertain exactly
what aspect of the district court's reasoning
was determinative.  Compare Carey v. Population
Servs. Int'l, 431 U.S. 678, 694 n.17 (1977)
(opinion of Brennan, J.) ("[T]he Court has not
definitively answered the difficult question
whether and to what extent the Constitution
prohibits state statutes regulating [private
consensual sexual] behavior among adults."),
with id. at 718 n.2 (Rehnquist, J., dissenting)
("While we have not ruled on every conceivable
regulation affecting [private consensual sexual]
conduct the facial constitutional validity of
criminal statutes prohibiting certain consensual
acts has been 'definitively' established.").

   n5 Congress did not explicitly include sexual
orientation as a protected characteristic in the
Civil Rights Act of 1964, Pub. L. No. 88-352, 78
Stat. 241 (codified as amended in scattered
sections of 28 and 42 U.S.C.), and courts have
refused to interpret the Act to proscribe
discrimination agaisnt gays as discrimination on
the basis of sex, see, e.g., DeSantis v. Pacific
Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979);
Smith v. Liberty Mut. Ins. Co., 395 F. Supp.
1098 (N.D. Ga. 1975). Only the state of
Wisconsin and approximately 30 cities proscribe
discrimination on the basis of sexual
preference, see WIS. STAT. ANN. @@ 111.31,
111.32(13m), 942.04 (West Supp. 1984-1985);
Taylor, Homosexuals Pursuing Georgetown U.
Lawsuit, N.Y. Times Oct. 31, 1984, at B6, col.
3, and only California's "public accommodations"
statute has been interpreted to protect gays,
see Curran v. Mt. Diablo Council of Boy Scouts
of Am., 147 Cal. App. 3d 712, 195 Cal. Rptr. 325
(1983), appeal dismissed, 104 S. Ct. 3574 (1984).

   n6 See, e.g., Dronenburg v. Zech, 741 F.2d
1388 (D.C. Cir. 1984) (private gay sexual
activity upheld as ground for discharging naval
petty officer); Singer v. United States Civil
Serv. Comm'n, 530 F.2d 247 (9th Cir. 1976)
(public announcement of homosexual activities
held to justify the government's denial of
employment), vacated in light of new
administrative policy, 429 U.S. 1034 (1977);
Gaylord v. Tacoma School Dist. No. 10, 88 Wash.
2d 286, 559 P.2d 1340 (potential public
knowledge of teacher's homosexual status held to
impair his ability to teach and thus to justify
dismissal), cert. denied, 434 U.S. 879 (1977).

   n7 See Gomez, The Public Expression of
Lesbian/Gay Personhood as Protected Speech, 1
LAW & INEQUALITY 121, 123 & n.17 (1983).  Only
in Wisconsin and California are gays
specifically protected against housing
discrimination.  See WIS. STAT. ANN. @ 101.22
(West Supp. 1984-1985); Hubert v. Williams, 133
Cal. App. 3d Supp. 1, 184 Cal. Rptr. 161 (App.
Dep't Super. Ct. 1982) (interpreting
California's Unruh Act to prohibit
discrimination against gay tenants in rental
housing).

   n8 See, e.g., Chaffin v. Frye, 45 Cal. App.
3d 39, 119 Cal. Rptr. 22 (1975) (denying custody
to lesbian mother).

   n9 See, e.g., Baker v. Nelson, 291 Minn. 310,
191 N.W.2d 185 (1971) (upholding denial of
marriage license to two men), appeal dismissed,
409 U.S. 810 (1972).

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   Recently, in the wake of the black civil
rights and women's movements, n10 gays have
increasingly sought constitutional protection
from this pervasive discrimiation. n11 Thus far,
however, their efforts have   [*1287]   met with
little success. n12 This Note argues that courts
should recognize homosexuality as a suspect
classification under the equal protection clause
of the fourteenth amendment n13 and therefore
subject laws that discriminate on the basis of
sexual preference to heightened scrutiny, n14
beyond the "rational basis" test currently
applied. n15 The argument starts from the
premise that unequal treatment of gay people is
a pervasive social problem, one we should
examine carefully for possible constitutional
iniquities.  Parts I and II examine in turn two
of the most commonly asserted constitutional
foundations for gay rights -- the right of
privacy and the first amendment guarantee of
free speech and expression -- to demonstrate how
these doctrines, whether considered alone or
together, fail to confront the persistent
problem of gay inequality.  Part III explores
equal protection analysis as a third possible
approach to gay rights. It concludes that such
an analysis provides a more accurate description
of the nature of sexual orientation and a more
comprehensive normative framework for addressing
discrimination against gays than does either of
the other   [*1288] predominant constitutional
approaches.  Such an analysis impels a searching
inquiry into the legitimacy of state goals and
the nature of equality.

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   n10 The 1969 "Stonewall Riots" are frequently
cited as the beginning of the gay liberation
movement.  See generally T. MAROTTA, THE
POLITICS OF HOMOSEXUALITY (1981) (chronicling
the rise of gay and lesbian activism in the
1960s and 1970s).

   n11 Such actions have been brought under
almost every constitutional rubric imaginable.
Gay litigants have relied predominantly on the
right of privacy, see, e.g., People v. Onofre,
51 N.Y.2d 476, 415 N.E.2d 936, 434 N.Y.S.2d 947
(1980), cert. denied, 451 U.S. 987 (1981), and
on the first amendment rights of free speech and
expression, see, e.g., Aumiller v. University of
Del., 434 F. Supp. 1273 (D. Del. 1977), but have
also based claims on the establishment clause
and the eighth amendment's prohibition of cruel
and unusual punishment, see Richards,
Homosexuality and the Constitutional Right to
Privacy, 8 N.Y.U. REV. L. & SOC. CHANGE 311, 311
(1979), on the limitations on the police power
reserved to the states under the tenth
amendment, see, e.g., Bonadio v. Commonwealth,
490 Pa. 91, 415 A.2d 47 (1980), on the equal
protection clause, see, e.g., Gay Law Students
Ass'n v. Pacific Tel. & Tel. Co., 24 Cal. 3d
458, 595 P.2d 592, 156 Cal. Rptr. 14 (1979), and
on the due process clause, see, e.g., benShalom
v. Secretary of Army, 489 F. Supp. 964 (E.D.
Wis. 1980).

   n12 For examples of the few cases in which
gays have prevailed under the federal or state
constitutions, see People v. Onofre, 51 N.Y.2d
476, 415 N.E.2d 936, 434 N.Y.S.2d 947 (1980),
cert. denied, 451 U.S. 987 (1981) (New York
criminal statute proscribing consensual sodomy
invalidated on privacy grounds), Bonadio v.
Commonwealth, 490 Pa. 91, 415 A.2d 47 (1980)
(Pennsylvania criminal statute proscribing
consensual sodomy struck down as violating equal
protection and exceeding limits of police
power), and Gay Law Students Ass'n v. Pacific
Tel. & Tel. Co., 24 Cal. 3d 458, 595 P.2d 592,
156 Cal. Rptr. 14 (1979) (public utility's
discrimination based on sexual orientation held
to violate equal protection clause of the
California constitution).

   n13 See U.S. CONST. amend. XIV, @ 1 ("No
State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.").

   n14 The Supreme Court has created a
two-tiered scheme of suspect classifications --
those that receive "strict" scrutiny and those
that receive only "intermediate" scrutiny.
Under strict scrutiny, the state must
demonstrate that the classifying statute is
narrowly tailored to achieve a compelling state
interest.  See Loving v. Virginia, 388 U.S. 1,
11 (1967) (racial classifications "must be shown
to be necessary to the accomplishment of some
permissible state objective"); Korematsu v.
United States, 323 U.S. 214, 216 (1944) (only
"[p]ressing public necessity" can justify
burdening a suspect class).  Under intermediate
scrutiny, the state must show only that the
legislative means are substantially related to
an important state goal.  See Craig v. Boren,
429 U.S. 190, 199 (1976); Reed v. Reed, 404 U.S.
71, 76 (1971). See generally L. TRIBE, AMERICAN
CONSTITUTIONAL LAW @ 16-6, at 1000-02, @ 16-13,
at 1012, @@ 16-30 to 32, at 1082-97 (1978)
(analyzing "strict scrutiny" as applied to
fundamental rights and suspect classifications
and describing the development of "intermediate
scrutiny").  Because the Supreme Court has not
elaborated upon the differences between the two
tiers of heightened scrutiny beyond the verbal
formulations stated avove, this Note does not
attempt to assess the different implications of
each tier for the protection of gay rights.
Instead, this Note argues that classifications
based on sexual orientation should be subject to
some form of heightened scrutiny in order to
foreclose resort to the argument available under
a mere "rational basis" analysis: that the mere
existence of widespread discrimination against
gays justifies its institutionalization.

   n15 See, e.g., National Gay Task Force v.
Board of Educ., 729 F.2d 1270, 1273 (1984) ("We
cannot find that a classification based on the
choice of sexual partners is suspect . . . ."),
aff'd by an equally divided Court, 53 U.S.L.W.
4408 (U.S. Mar. 26, 1985).

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   I.  THE POVERTY OF PRIVACY

   Commentators and litigators seeking
constitutional protection for gay rights rely
most frequently on the right of privacy. n16 The
privacy argument emphasizes the fundamental
importance of sexuality to the individual and
the relative unimportance of the state's
interest in regulating private, self-regarding
conduct.  It is based on the classical liberal
conception that individuals should enjoy
autonomy within certain spheres that lie beyond
the permissible reach of government. n17
Although the right of privacy is not made
explicit in the Constitution, a series of
Supreme Court decisions has established its
constitutional status.  Griswold v. Connecticut
n18 held that the right of privacy protects the
use of contraceptives by married couples.
Eisenstadt v. Baird n19 found that the equal
protection clause gives unmarried couples a
right of equal access to contraceptives, and Roe
v. Wade n20 held that the constitutional right
of privacy encompasses a woman's decision to
have an abortion.  Although some commentators
have interpreted these cases to mean that the
right of privacy comprehends a general right to
sexual autonomy and therefore protects
homosexuality, n21 the Supreme Court, n22 other
federal courts, n23 and most state courts n24
have   [*1289]   largely declined to extend
privacy doctrine beyond traditional
institutional frameworks such as marriage and
family. n25

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   n16 For a listing of pertinent commentary,
see the bibliography in Grey, Eros, Civilization
and the Burger Court, LAW & CONTEMPT. PROBS.,
Summer 1980, at 83, 99-100.  For representative
cases, see Dronenberg v. Zech, 741 F.2d 1388
(D.C. Cir. 1984); Baker v. Wade, 553 F. Supp.
1121 (N.D. Tex. 1982), appeal dismissed, 743
F.2d 236 (5th Cir. 1984); Doe v. Commonwealth's
Attorney, 403 F. Supp. 1199 (E.D. Va. 1975)
(three-judge court), aff'd mem., 425 U.S. 901
(1976); People v. Onofre, 51 N.Y.2d 476, 415
N.E.2d 936, 434 N.Y.S.2d 947 (1980), cert.
denied, 451 U.S. 987 (1981).

   n17 See J. S. MILL, ON LIBERTY, ch. 4, at 214
(M. Warnock ed. 1962) (1st ed. London 1859)
(society should not interfere with "purely
personal conduct").

   n18 381 U.S. 479 (1965).

   n19 405 U.S. 438 (1972).

   n20 410 U.S. 113 (1973).

   n21 See J. BAER, EQUALITY UNDER THE
CONSTITUTION 231 (1983) ("The courts have
refused, on nonexistent grounds, to extend this
right [of privacy] to homosexuals."); Richards,
supra note 11, at 314 ("There is no principled
way to defend the earlier right to privacy cases
and not extend the right to homosexuality . . .
.").

   n22 See Doe v. Commonwealth's Attorney, 403
F. Supp. 1199 (E.D. Va. 1975) (three-judge
court), aff'd mem., 425 U.S. 901 (1976). On the
debate over the significance of Commonwealth's
Attorney, see note 4.

   n23 See, e.g., Dronenburg v. Zech, 741 F.2d
1388 (D.C. Cir. 1984) (holding that right of
privacy does not extend to private homosexual
conduct).  But see Baker v. Wade, 553 F. Supp.
1121 (N.D. Tex. 1982) (striking down sodomy
statute on privacy and equal protection
grounds), appeal dismissed, 743 F.2d 236 (5th
Cir. 1984).

   n24 See, e.g., State v. McCoy, 337 So. 2d 192
(La. 1976) (holding that criminal statute
proscribing consensual sodomy does not violate
right of privacy).  But see People v. Onofre, 51
N.Y.2d 476, 415 N.E.2d 936, 434 N.Y.S.2d 947
(1980) (striking down sodomy statute on privacy
and equal protection grounds), cert. denied, 451
U.S. 987 (1981).

   n25 See Grey, supra note 16, at 87-88
(arguing that the privacy cases were concerned
not with autonomy, but with marriage, family,
and procreation -- institutions designed to
promote social control).  Grey's analysis is
supported by courts that, in distinguishing the
privacy precedents, have based their decisions
on the belief that homosexuality falls outside
of the recognized zones of privacy, not on the
ground that a general right to sexual autonomy
is outweighed by other social needs.  See, e.g.,
Dronenburg v. Zech, 741 F.2d 1388, 1391-92 (D.C.
Cir. 1984). The same reasoning has applied when
courts have refused to invalidate laws
criminalizing fornication or adultery -- the
right of privacy has not been held to confer
blanket protection on sexual autonomy.  See,
e.g., Johnson v. San Jacinto Junior College, 498
F. Supp. 555 (S.D. Tex. 1980) (right of privacy
does not encompass an extramarital relationship).

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   Although extending the protection of privacy
doctrine to consensual gay conduct might help to
promote gay equality, n26 privacy analysis
suffers from fundamental flaws in its conception
of social relations in general and homosexuality
in particular.  Privacy analysis assumes a dual
structure -- a division between the home and the
outside world -- that does not adequately
capture the complexity of social life.  Most
people experience not only two, but at least
four overlapping "spheres" -- the home, the
workplace, voluntary associations, and politics
-- each manifesting both public and private
attributes.  An argument for gay rights based on
the public/private dichotomy ignores the
artificiality of sharply distinguishing the
"public" state from such "private" institutions
as marriage and family.  On closer examination,
these seemingly private institutions, whose
well-being lies at the heart of the privacy
cases, betray a markedly public dimension.  The
state is a "third party" to every marriage
contract: it determines not only who may marry,
n27 but also what rights and duties each marital
partner bears in relation to the other and to
any children they might have. n28   [*1290]
The state creates the private sphere by
determining its contours and limits, and
protects it by granting it alone the shield of
privacy. n29

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   n26 Such an extension would decriminalize
private, consensual gay conduct in the 24
jurisdictions with criminal sodomy statutes, see
supra note 4. Decriminalization might positively
affect general social perceptions of gays and
would also lay to rest the contention that the
free speech and association of gays can be
curtailed because they incite unlawful conduct.
See Stanley, The Rights of Gay Student
Organizations, 10 J. COLL. & UNIV. L. 397,
402-08 (1983).

   Theoretically, one could argue that the right
of privacy would prohibit other incidences of
unequal treatment of gays, such as employment
discrimination or the withholding of public
benefits, because these practices would
impermissibly burden a fundamental right.  Yet
the right of privacy, at least in the abortion
context, has not been read so broadly as to
require affirmative government action or even
impartiality.  See, e.g., Harris v. McRae, 448
U.S. 297, 314-18 (1980) (denial of public funds
to Medicaid programs for medically necessary
abortions held not to burden impermissibly the
right to choose abortion, but simply to
encourage childbirth).  There is no reason to
believe it would be read more broadly in the
context of gay rights.

   n27 See Jones v. Hallahan, 501 S.W.2d 588
(Ky. 1973) (upholding denial of marriage license
to two women); In re State ex rel. Black, 3 Utah
2d 315, 283 P.2d 887 (1955) (declaring polygamy
unlawful).

   n28 See generally J. AREEN, CASES AND
MATERIALS ON FAMILY LAW (1978 & Supp. 1983)
(describing and documenting state involvement in
marriage, procreation, divorce, adoption, and
childrearing).

   n29 The number of possible loving
relationships that are excluded from the state's
conception of family illustrates the degree to
which the reality of family is dependent upon
the state.  See Village of Belle Terre v.
Boraas, 416 U.S. 1 (1974) (upholding zoning
ordinance limiting the number of unrelated
people in a household); cf. Miller, Fair Share?
Extending Benefits to Domestic Partners, Boston
Phoenix, Oct. 16, 1984, @ 2, at 1, 12 (only
unconventional cities like Berkeley, California,
extend insurance coverage and other benefits to
the domestic partners as well as the spouses of
municipal employees).  Just as the family
depends upon the state for its existence and
contours, so the state depends upon the
structures of marriage and family.  See M.
BARRETT & M. McINTOSH, THE ANTI-SOCIAL FAMILY 31
(1982) ("Just as the family has been socially
constructed, so society has been
familialized.").  See generally The
Public/Private Distinction, 130 U. PA. L. REV.
1289 (1982) (symposium reviewing the persistence
of the public/private dichotomy across different
fields of law).

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   The overlap and interaction between family
and state suggest at the very least that the
relationship between public and private
experience is in fact more a subtly shaded
continuum than a dichotomy.  The four
overlapping spheres mentioned above -- or
perhaps a scheme of even greater detail and
fluidity -- would capture the complexities of
the social and political world more fully than
could the rigid dualism of privacy doctrine.
This dualism is especially ill-suited to the
affirmation of gay rights, because it assumes
that homosexuality is merely a form of conduct
that can take place in the privacy of the
bedroom at a specified time, rather than a
continuous aspect of personality or personhood
that usually requires expression across the
public/private spectrum.  As Professor Tribe has
argued, "[F]reedom to have impact on others --
to make the 'statement' implicit in a public
identity -- is central to any adequate
conception of the self." n30 Such public
manifestations may be necessary not only as
personal expressions of gay identity, but also
as means for heightening public awareness of
homosexuality and thus perhaps broadening public
acceptance of gay lifestyles. n31 Relegating
sexuality to the private sphere revives an
element of the old "separate but equal" doctrine
-- the belief that the separation of one group
from the world of more general social
interaction is neither unequal nor stigmatizing.
n32 Withholding social recognition from the
public aspects of gay personhood while   [*1291]
"[h]eterosexual society revolves around its
sexual orientation" n33 is inherently unequal
not only in its substantive restriction of gay
liberties, but also in its imputation of stigma:
homosexuality, like obscenity, may be tolerated
only if quarantined. n34

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   n30 L. TRIBE, supra note 14, @ 15-1, at 888.

   n31 See Gay Law Students Ass'n v. Pacific
Tel. & Tel. Co., 24 Cal. 3d 458, 488, 595 P.2d
592, 610, 156 Cal. Rptr. 14, 32-33 (1979)
("[O]ne important aspect of the struggle for
equal rights is to induce homosexual individuals
to 'come out of the closet," acknowledge their
sexual preferences, and to associate with others
in working for equal rights."); J. ELY,
DEMOCRACY AND DISTRUST 163-64 (1980).  Indeed,
the general public, as well as the gay
individual, may have an interest in the free
public expression of gay sexuality in order to
create a "sexually pluralistic environment." See
Klare, The Public/Private Distinction in Labor
Law, 130 U. PA. L. REV., 1358, 1386-88 (1982).

   n32 Cf. Plessy v. Ferguson, 163 U.S. 537, 551
(1896) (arguing that racial segregation is
stigmatizing only in the sense that "the colored
race chooses to put that construction upon it").

   n33 Gomez, supra note 7, at 133.

   n34 Cf. Stanley v. Georgia, 394 U.S. 557, 568
(1969) (holding that criminal law may not
proscribe private possession of obscene
materials for personal use); United States v.
Reidel, 402 U.S. 351, 354 (1971) (limiting
Stanley's protection to possession at home).

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   By misconceiving the nature of "private"
institutions and of "private" sexuality, privacy
analysis not only presents an unconvincing
portrait of the social world, but also fails to
provide an adequate remedy for unequal treatment
of gays.  Privacy analysis assumes that the
problem to be solved is unwarranted intrusion
into a protected sphere and that the right to be
vindicated is, in Judge Cooley's famous words,
"the right to be let alone." n35 Yet if the real
problem is one of pervasive discrimination
against gays, the withdrawal of the state from
the bedroom will not greatly alleviate it and
indeed may exacerbate it by subtly sanctioning
the continued stigmatization of the private
activity. The social world, where most
discrimination against gays occurs, is left
untouched by the seemingly neutral abstention of
the state. n36

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   n35 T. COOLEY, A TREATISE ON THE LAW OF TORTS
29 (2d ed. 1888), cited in Warren & Brandeis,
The Right to Privacy, 4 HARV. L. REV. 193, 195
(1890).

   n36 As Professor Catherine MacKinnon has
noted in the context of abortion rights:
"Freedom from public intervention coexists
uneasily with any right which requires social
preconditions to be meaningfully delivered.  If
inequality, for example, is socially pervasive
and enforced, equality will require
intervention, not abdication, to be meaningful."
C. MacKinnon, Roe v. Wade: A Study in Male
Ideology 12-13 (Jan. 1983) (paper presented at
Hampshire College as part of a retrospective
discussion of Roe v. Wade).

   The inability of government abstention to
remedy inequality is illustrated by the fact
that the workplace falls outside of the spheres
traditionally recognized as private.  Thus,
employment discrimination, one of the major
barriers that gays face in the social world,
would remain undeterred by the recognition of a
right of privacy for gay people.  Indeed, in New
York, one of the few states in which courts have
recognized gay privacy rights, Mayor Koch faced
fierce opposition to his executive order
requiring contractors with the City of New York
to certify that they do not discriminate on the
basis of sexual orientation.  See supra note 3.

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   A hypothetical example of the theoretical and
practical limitations of privacy analysis is the
anticipated reversal by the Supreme Court of the
holding in People v. Uplinger. n37 In People v.
Onofre, n38 the New York Court of Appeals
invalidated on federal constitutional grounds a
statute that made private, consensual gay
conduct a criminal offense. n39 A statute that
proscribed loitering for the purpose of
performing consensual sodomy, however, remained
on the books.  In Uplinger, the court of appeals
summarily invalidated this statute as   [*1292]
 well, reasoning that it could not be criminal
to loiter for the purpose of committing a legal
act when there was no requirement that the
loitering itself be offensive. n40 The Supreme
Court granted certiorari and heard oral argument
on the case.  It eventually dismissed certiorari
as improvidently granted, n41 apparently because
it had declined to review Onofre, upon which the
decision of the court of appeals in Uplinger was
based.  Had the Supreme Court decided Uplinger,
however, it might well have drawn a distinction
like the one suggested in the following
hypothetical opinion:

   Although this Court has declined to extend
the right of privacy to protect deviant sexual
behavior, even such an extension would have no
applicability to this case.  The right of
privacy extends only to certain "zones" in which
individual behavior is entirely self-contained.
Once such behavior appears on the streets and
affects the lives of other citizens without
their consent, such behavior can no longer claim
the shield of "privacy." Regulating public
behavior that may be offensive to other citizens
falls within the proper province of the police
power of the State. n42

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   n37 58 N.Y.2d 936, 447 N.E.2d 62, 460
N.Y.S.2d 514 (1983), cert. dismissed, 104 S. Ct.
2332 (1984).

   n38 51 N.Y.2d 476, 415 N.E.2d 936, 434
N.Y.S.2d 947 (1980), cert. denied, 451 U.S. 987
(1981).

   n39 See id. at 485, 415 N.E.2d at 938-39, 434
N.Y.S.2d at 949.

   n40 See People v. Uplinger, 58 N.Y.2d 936,
938, 447 N.E.2d 62, 63, 460 N.Y.S.2d 514, 515
(1983).

   n41 New York v. Uplinger, 104 S. Ct. 2332
(1984).

   n42 The facts of Uplinger may not constitute
the best example of the artificiality of the
privacy dichotomy because the case implicates
the state's interest in prohibiting
prostitution.  But Uplinger exemplifies only one
of many possible uses of the public/private
distinction to limit gay rights.  Other examples
might include restrictions on public socializing
or displays of affection, or denial of state
licenses on the basis of sexual preference.  Cf.
Inman v. City of Miami, 197 So. 2d 50 (Fla.)
(upholding Miami ordinance proscribing
employment or service of gays by liquor
licensee), cert. denied, 389 U.S. 1048 (1967).

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   Where the right of privacy gives way -- in
the case of homosexuality, outside the bedroom
door -- social consensus takes over in the guise
of the "police power." Under this power, the
state not only delimits the physical space in
which gays may engage in sexual activity, but
also restricts their ability to participate
freely in the social world as gays, openly
acknowledging their lifestyles without fear of
legal reprisal.  Even if homosexuality were
accorded the full protection of privacy
doctrine, majoritarian norms would still govern
the expression of gay personhood outside the
bedroom.

   II.  THE MIRROR IMAGE: GAY RIGHTS UNDER THE
FIRST AMENDMENT

   Advocates of gay equality have developed the
first amendment rights to speech, expression,
and association n43 as an additional ground
[*1293]   for the affirmation of gay rights,
although this approach has been invoked less
frequently than the privacy rationale.  The
protection provided by the first amendment is
the mirror image of that afforded by privacy
doctrine: whereas the latter would serve to
protect only private gay conduct, the former
would shelter only public activities -- a gay
person's public acknowledgment of her
homosexuality, the advocacy of a gay lifestyle
or of gay rights, the public assembly of groups
of gay people, and gay political activity. n44 A
number of courts have recognized extensive first
amendment protection of gay activity, including
the right to associate freely, n45 to advocate
gay rights with impunity, n46 and to engage in
symbolic speech. n47 Other courts, however, have
declined to protect these rights, finding a
rational basis for discrimination either in gay
advocacy itself n48 or in gay status revealed
through the exercise of first amendment
freedoms. n49

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   n43 The Supreme Court, by dividing
association into the two components of intimate
and expressive association, has in effect
subsumed the right of association into the
rights of privacy and expression.  See Roberts
v. United States Jaycees, 104 S. Ct. 3244, 3249
(1984); The Supreme Court, 1983 Term, 98 HARV.
L. REV. 87, 197 & n.18 (1984).  Consequently, no
independent basis for gay rights has been
developed under the rubric of freedom of
association.

   n44 A wide gap remains, however, between the
spheres protected by privacy and the first
amendment.  See infra p. 1296.

   n45 See, e.g., Gay Lib v. University of Mo.,
558 F.2d 848, 857 (8th Cir. 1977) (holding that
state university's refusal to recognize a gay
students' organization violates the first
amendment), cert. denied, 434 U.S. 1080 (1978).

   n46 See, e.g., Aumiller v. University of
Del., 434 F. Supp. 1273 (D. Del. 1977) (holding
that lecturer's first amendment rights were
violated when state university refused to renew
his contract because of his statements about
homosexuality reported in newspaper).

   n47 See, e.g., Fricke v. Lynch, 491 F. Supp.
381 (D.R.I. 1980) (first amendment protects the
right of male high school student to bring a
male date to the prom).

   n48 See, e.g., National Gay Task Force v.
Board of Educ., 33 Fair Empl. Prac. Cas. (BNA)
1009 (W.D. Okla. 1982) (upholding the facial
validity of an Oklahoma statute authorizing the
dismissal of a school teacher for "advocating,
soliciting, imposing, encouraging, or promoting
public or private homosexual activity in a
manner that creates a substantial risk that such
conduct will come to the attention of school
children or school employees"), rev'd, 729 F.2d
1270 (1984), aff'd by an equally divided Court,
53 U.S.L.W. 4408 (U.S. Mar. 26, 1985).

   The Supreme Court has denied certiorari in
cases involving teacher dismissals based on the
teacher's known gay status.  See Gaylord v.
Tacoma School Dist. No. 10, 88 Wash. 2d 286, 559
P.2d 1340, cert. denied, 434 U.S. 879 (1977);
cf. Rowland v. Mad River Local School Dist., 730
F.2d 444 (6th Cir. 1984) (dismissal of guidance
counselor because of her revealed bisexual
status held not to violate her rights to free
speech and equal protection), cert. denied, 53
U.S.L.W. 3614 (U.S. Feb. 25, 1985); Acanfora v.
Board of Educ., 491 F.2d 498 (4th Cir. 1974)
(upholding dismissal of teacher based on his
failure to disclose in his employment
application that he had belonged to a gay
organization while in college), cert. denied,
419 U.S. 836 (1975); Gish v. Board of Educ., 145
N.J. Super. 96, 366 A.2d 1337 (1976) (per
curiam) (upholding school's requirement that
teacher undergo psychiatric examination because
of his public activities in support of gay
rights), cert. denied, 74 N.J. 252, 377 A.2d
658, cert. denied, 434 U.S. 879 (1977). Yet the
Court has never gone so far as to tolerate
dismissal for mere advocacy of gay rights, as
its affirmance of the circuit court's
invalidation of the Oklahoma statute in National
Gay Task Force illustrates.  Its decision in the
Oklahoma case, however, does not resolve the
difficult cases involving teacher dismissals and
other forms of discrimination based on publicly
known gay status or private conduct -- cases
that can properly be addressed only by an equal
protection analysis.

   n49 See, e.g., Singer v. United States Civil
Serv. Comm'n, 530 F.2d 247 (9th Cir.)
(plaintiff's public flaunting of his gay
lifestyle justified the government's termination
of his employment), vacated in light of new
administrative policy, 429 U.S. 1034 (1976);
Gaylord v. Tacoma School Dist. No. 10, 88 Wash.
2d 286, 559 P.2d 1340 (discharge of teacher
upheld because his reputation as gay would
impair his ability to teach), cert. denied, 434
U.S. 879 (1977).

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   [*1294]   All of these courts, however, no
matter how broadly they might read the first
amendment, have drawn a distinction between the
words spoken and the reality they represent --
the expression is protected, the lifestyle is
not. This distinction can be defended by
reference to a vision of the first amendment
that protects homosexuality only as a competitor
in a necessary free marketplace of ideas.  Under
this view, the importance of free speech lies in
its powerful political role of encouraging the
cross-fertilization of ideas and stimulating
dissent. n50 Nonconforming lifestyles are not
themselves protected; rather, the right to be
gay openly and freely must attend the ascendance
of the idea of gay rights.  Thus, in enforcing
social consensus, the state can legitimately
outlaw gay conduct and discriminate on the basis
of gay status as long as it gives the "concept"
of homosexuality its due.

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   n50 See J.S. MILL, supra note 17, ch. 2, at
173-74; L. TRIBE, supra note 14, @ 12-1, at 576.

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   A different, though related first amendment
justification for protecting speech about
homosexuality -- but not homosexuality itself --
relies on the perceived harmlessness of speech,
on the belief that "'our people, adequately
informed, may be trusted to distinguish between
the true and the false.'" n51

This conception of the first amendment allows
unpopular speech not because it is powerful, but
because it is ineffectual.  Such a view invites
the counterargument that speech is far from
innocuous, an argument vigorously made by
Justice Rehnquist in his dissent from the
Court's refusal to grant certiorari in Gay Lib
v. University of Missouri, n52 The university
had refused to recognize a gay students'
organization on the ground that such recognition
would encourage violation of Missouri's
anti-sodomy statute.  In support of the
university's position, Justice Rehnquist argued
that permitting the exercise of first amendment
rights of speech and association in this
instance would undercut a legitimate state
interest, just as permitting people with the
measles to associate freely with others would
undercut the state's interest in imposing a
quarantine. n53

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   n51 Student Coalition for Gay Rights v.
Austin Peay State Univ., 477 F. Supp. 1267, 1274
(M.D. Tenn. 1979) (quoting Viereck v. United
States, 318 U.S. 236, 251 (1942) (Black, J.,
dissenting)).

   n52 558 F.2d 848 (8th Cir. 1977) (finding
university's refusal to recognize gay student
group a violation of the first amendment), cert.
denied, 434 U.S. 1080 (1978).

   n53 See Ratchford v. Gay Lib, 434 U.S. 1080,
1084 (1978) (Rehnquist, J., dissenting).

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   Two possible arguments, however, avoid the
limitations of defending gay rights under the
first amendment either as purely political
rights or as rights recognized only by virtue of
their impotence, and thus protect gay lifestyles
as well as gay speech.  The first argument
maintains that to penalize the reality of being
gay serves to "chill" the exercise of free
speech asserting gay identity.  The second
suggests   [*1295]   that all gay speech and
conduct are means of self-expression and
therefore are protected under the first
amendment. Both of these arguments, however,
collapse the distinction between speech and
conduct.  Courts can and have distinguished gay
conduct from gay status, speech, and
association. n54 An individual could advocate
gay rights and associate with gay organizations
-- or simply be gay -- without engaging in gay
sexual activity.  However unappealing n55 and
impractical n56 these distinctions may be, they
are embedded in first amendment jurisprudence,
n57 as well as in other areas of law. n58
Moreover, if taken to its logical extreme, the
complete collapse of conduct into speech is as
likely to weaken first amendment protection as
it is to strengthen it: the "speech" in question
might receive only the ordinary due process
protection that personal liberty receives under
the fourteenth amendment.  Thus, unless the
argument is that all conduct accompanied by
speech merits first amendment protection, or
that all conduct is self-expression, the first
amendment alone cannot serve as an adequate
vehicle for the affirmation of gay rights.

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   n54 See, e.g., Matthews v. Marsh, No. 82-0216
(D. Me. Apr. 3, 1984), vacated, No. 84-1482 (1st
Cir. Feb. 22, 1985).  Matthews is discussed on
pp. 1295-96.

   n55 See L. TRIBE, supra note 14, @ 12-7, at
599 ("The trouble with the distinction between
speech and conduct is that it has no real
content."); Klare, supra note 31, at 1387 ("How
can this distinction between identity and
conduct be tenable?").

   n56 Although there is perhaps a metaphysical
distinction between status and conduct, one is
rarely found without the other.  In responding
to the majority's distinction in Robinson v.
California, 370 U.S. 660 (1962), between the
status of drug addiction and the act of drug
use, Justice White noted, "[A]ddiction is the
regular use of narcotics and can be proved only
by evidence of such use." Id. at 686 (White, J.,
dissenting).

   n57 See Karst, The Freedom of Intimate
Association, 89 YALE L.J. 624, 654 (1980) (the
first amendment should not "be stretched to
cover all our constitutional freedoms");
Schauer, Must Speech Be Special?, 78 NW. U.L.
REV. 1284, 1289-93 (1983) (rejecting the
"self-development" theory of the first amendment
because it fails to distinguish speech from all
other human activity and thus expands the first
amendment into a general protection of liberty).

   n58 See Powell v. Texas, 392 U.S. 514, 532-34
(1968) (distinguishing act of public drunkenness
from status as chronic alcoholic); Robinson v.
California, 370 U.S. 660, 665-67 (1962)
(distinguishing status of drug addiction from
act of using drugs).

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   The shortcomings of first amendment analysis
are demonstrated by a case that draws the
speech/conduct distinction and creates a result
that illustrates, as did the hypothetical
Uplinger opinion in the privacy context, n59
that a wide terrian of social interaction is
left untouched by the protection of gay rights
under a rationale that focuses exclusively on
either the private or the public aspects of
homosexuality.  In Matthews v. Marsh, n60 the
court ordered the reenrollment of an ROTC cadet
who had been discharged pursuant to Army
regulations for her statement to a superior
officer: "I am a lesbian." The court held that a
statement of mere intent or desire, with no
showing of actual lesbian conduct, was protected
by the first amendment   [*1296]   and therefore
could not be the basis for her disenrollment.
n61 But a showing of lesbian activity, the
opinion suggested, would be a different matter.
n62 The court left unanswered how much
expression beyond "pure" speech would be
protected by the first amendment.  Participation
in gay politics, appearance at a gay club or
bar, or the public expression of affection for a
member of the same sex might yet be valid
grounds for disenrollment, even though such
activities may be as fundamental to expressing
one's identity as was the statement at issue in
Matthews. Such distinctions suggest why first
amendment jurisprudence cannot accurately
conceptualize or adequately protect all aspects
of gay identity.

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   n59 See supra pp. 1291-92.

   n60 No. 82-0216 (D. Me. Apr. 3, 1984),
vacated, No. 84-1482 (1st Cir. Feb. 22, 1985).

   n61 Id., slip op. at 3-4.

   n62 See id. at 18-19.  Indeed, the First
Circuit vacated and remanded the case for
reconsideration in light of additional evidence
presented on appeal -- a signed statement by Ms.
Matthews that she had "engaged in homosexual
acts numerous times, last one being recently."
See Matthews v. Marsh, No. 84-1482, slip op. at
4-5 (1st Cir. Feb. 22, 1985).

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   Analyzed together, the Matthews decision and
the hypothetical opinion reversing Uplinger
portray the wide range of gay activity that
would remain vulnerable even if homosexuality
were protected by both the first amendment and
the right of privacy.  Any gay conduct found
neither entirely private nor expressive in
nature would fall in the unprotected area.
Similarly, gay status in certain "public"
contexts -- such as employment, housing, and
public accommodations -- would remain
unprotected.  Public employment, an area in
which gays have traditionally suffered severe
discrimination, lies squarely within this
unprotected zone.  Although the government as
employer is bound by constitutional restraints
on state action, the right of privacy and the
right to free speech have rarely been held to
protect gays employed in the civil service, the
military, or the public schools.  Most courts
have held that the special state interests
implicated in these settings override any such
constitutional liberties of gay employees. n63

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   n63 See cases cited supra note 6.

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   One commentator has maintained that the
constitutional protection of expression can be
interpreted to cover these vulnerable areas: a
general first amendment right to sexual
expression protects the choice of a gay
lifestyle as a "fundamental right" under the
equal protection clause of the fourteenth
amendment. n64 Such an argument, although
vulnerable to the general critique leveled at
expansive applications of   [*1297]   the first
amendment to sexual orientation, n65 does
recognize the crucial role of the equal
protection clause in protecting homosexuality as
an aspect of personhood.  This insight invites
examination of the other significant branch of
equal protection doctrine -- the judicial
creation of inherently suspect classifications.
n66

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   n64 That commentator argued:

   Because the public expression of lesbian/gay
personhood is a fundamental right, founded in
the first amendment, courts must heighten their
scrutiny of practices against lesbians and gays
when challenged under the equal protection or
due process clauses of the fourteenth amendment.
 This level of scrutiny will safeguard many of
the rights of lesbians and gays now set aside in
deference to state interests.

Gomez, supra note 7, at 153.

   n65 Such a view of first amendment protection
blurs the distinction between speech and
conduct, see supra p. 1295, and fails to address
the wide range of social discrimination against
gays based not on their speech or association,
but on the lifestyle revealed through their
public activities, see supra p. 1293 & notes
48-49.

   n66 Courts subject a law to strict scrutiny
when it either burdens a fundamental right or
discriminates against a specially protected
group.  See L. TRIBE, supra note 14, @ 16-7, at
1002, @ 16-13, at 1012; see also supra note 14
(discussing heightened scrutiny generally).

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   III.  HOMOSEXUALITY AS A SUSPECT CLASSIFICATION

   The "suspect class" branch of equal
protection theory bridges the gap in the
protection of gay rights between privacy
doctrine and the first amendment. Whereas
privacy doctrine can protect only private gay
conduct rather than the choice of a publicly gay
lifestyle, and the first amendment encompasses
the political arena rather than the social
world, an equal protection analysis seeks to
unify the private and the political by
protecting gay personhood as a whole. Whereas
arguments for privacy and first amendment rights
ultimately give way to social consensus, equal
protection theory rejects social consensus and
the democratic process as the final arbiters of
the rightful status of social groups.  Judicial
designation of homosexuality as a suspect
classification, even though it could not
automatically eradicate all forms of
discrimination against gays, n67 could provide a
comprehensive doctrinal framework for addressing
the problem of gay inequality.

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   n67 Although the inclusion of sexual
orientation as a protected characteristic in the
federal civil rights laws, for example, is a
task that only Congress can undertake, the term
"strict scrutiny" (or "heightened scrutiny")
represents an overt warning to the legislature,
not merely a description of the quality of
judicial revies.  See L. TRIBE, supra note 14, @
16-6, at 1000.  Even without the passage of
anti-discrimination legislation to remedy
private acts of discrimination, heightened
scrutiny would lead courts to strike down a
broad array of discriminatory practices against
gays -- including criminal statutes, exclusion
of gays from teaching positions and the
military, and denial to gays of access to public
accommodations.  This range of judicial activity
would undoubtedly have an impact on the
legislature and, more broadly, on social
attitudes.

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   Although it is clearly in the interest of gay
people to be deemed a suspect class, it remains
to be considered whether such a designation
comports with current equal protection
jurisprudence.  The creation of special
standards of review is a particularly
controversial area of the law, not only because
courts have articulated no coherent set of
principles, but also because special scrutiny
raises the troubling issue of the legitimacy of
judicial review in a democratic society. n68 To
 [*1298]   avoid or at least to mitigate these
difficulties, courts have generally based their
analyses of suspect or quasi-suspect classes n69
on the model of race, the only criterion that
uncontestedly entails a suspect classification.
Other criteria considered for suspectness must
resemble race to some largely unelucidated
degree.  What judicial elucidation there is has
developed sporadically in the context of
particular cases, n70 and has given rise to an
ambiguous catalogue of characteristics of
suspectness that yields no obvious or coherent
theory of suspect classifications. n71

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   n68 See Ackerman, The Storrs Lectures:
Discovering the Constitution, 93 YALE L.J. 1013,
1013-16 (1984) (discussing Alexander Bickel's
description of the "countermajoritarian
difficulty" with judicial review).

   n69 "Quasi-suspect" classifications trigger
"intermediate" scrutiny.  See supra note 14.

   n70 See, e.g., Lalli v. Lalli, 439 U.S. 259
(1978) (subjecting law discriminating on the
basis of illegitimacy to intermediate review);
Craig v. Boren, 429 U.S. 190 (1976) (formulating
intermediate standard of review for gender
classifications); Massachusetts Bd. of
Retirement v. Murgia, 427 U.S. 307 (1976)
(finding that old age is not a suspect
classfication); San Antonio Indep. School Dist.
v. Rodriguez, 411 U.S. 1 (1973) (holding that
discrimination on the basis of wealth alone does
not trigger heightened scrutiny); Graham v.
Richardson, 403 U.S. 365 (1971) (finding
alienage to be a suspect classification).

   n71 The prerequisites of stigma, unequal
treatment, immutability, and discreteness and
insularity are discussed on pp. 1299-1305.

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   Many courts and commentators treat the issue
of suspectness as if equal protection analysis
ended there; yet it is clear that such an
analysis has two parts: the determination of the
standard of scrutiny to be applied and the
consideration of possible state interests in the
application of the standard. The second part has
often been treated summarily because "strict"
scrutiny has generally been fatal to
legislation, while "minimal" scrutiny has
generally been toothless. n72 When the choice
was limited to these extremes, courts seemed in
effect to collapse the two steps into one,
simultaneously determining the level of
protection to be afforded the group and
considering the legitimacy of the asserted state
interest.  Courts determined whether a class was
suspect by examining not specific
characteristics of the class itself, but the
state interests at stake.  The advent of
intermediate scrutiny, n73 however, has
highlighted the existence and importance of the
two separate investigations. The often neglected
second step is crucial to the debate about
suspectness because it directly confronts the
question implicit in that debate: what
collective goals are permissible under the
fourteenth amendment?

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   n72 See Gunther, The Supreme Court, 1971 Term
-- Foreword: In Search of Evolving Doctrine on a
Changing Court: A Model for a Newer Equal
Protection, 86 HARV. L. REV. 1, 8 (1972).

   n73 See supra note 14.

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   This Part proposes a theory of suspectness
consistent with the concerns underlying the
piecemeal judicial development of suspect class
doctrine, and then applies it to homosexuality
within the framework of a two-step equal
protection analysis.  Section A develops a model
of suspectness that encompasses sexual
orientation.  Section B   [*1299]   assesses the
state interests involved in the particular and
especially difficult case of the rights of gay
teachers in the public schools.

   A.  The Boundary of Suspectness

   The predominant way of understanding the
development of suspect classifications has been
to see this branch of equal protection theory as
protecting individuals from unequal treatment on
the basis of "irrelevant" characteristics. n74
Such an analysis treats criteria such as race
and gender as essentially insignificant for
legitimate regulatory purposes.  The problem
with this explanation of suspectness is that it
is conclusory; it provides no guidelines for
distinguishing between relevant and irrelevant
characteristics. Even a determination that a
characteristic is irrelevant to the achievement
of a specified purpose can only invalidate a
particular piece of legislation rather than
define a suspect class.  There are many groups
that share generally irrelevant characteristics
(baldness, for example) yet do not receive the
benefit of heightened scrutiny.  This Note
offers an alternative account of suspectness
that emphasizes the importance rather than the
irrelevance of the protected characteristics.
This alternative vision defines suspect
classifications as those based on
characteristics that are essential elements of
personhood n75 and yet focal points of
discrimination.  Although this alternative
perspective does not create a rule by which
suspectness can be absolutely determined in
every case, it does suggest the ways in which
the issue may be framed, thereby creating an
articulable boundary of suspectness. n76

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   n74 See, e.g., Perry, Modern Equal
Protection: A Conceptualization and Appraisal,
79 COLUM. L. REV. 1023, 1065 (1979) ("[T]he
Supreme Court has moved beyond the original
understanding of the equal protection clause in
. . . distilling from the principle of the moral
irrelevance of ract the more general principle
of the moral irrelevance of any trait that
reveals nothing about the moral worth or desert
of a person.").

   n75 The concept of personhood is elaborated
on p. 1300.

   n76 The breadth or narrowness of the range of
groups that the proposed theory of suspectness
would encompass is not only an equal protection
issue, but a separation of powers issue as well.
 Given that most theories of suspectness can be
construed either broadly or narrowly, the choice
of construction is determined by our trust in
the legitimacy of the political as compared to
the judicial process.

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   In determining whether a particular
classification is suspect, courts and
commentators have focused most often on the
"stigma" and "opprobrium" attached to membership
in the relevant group and that group's
concomitant unequal treatment. n77 These
considerations are universally accepted as
reliable means of determining a group's need for
judicial intervention.  In contrast, however,
two of the other generally accepted criteria of
suspectness -- the "immutability" of the group's
defining quality n78 and the group's status as a
"discrete and   [*1300]   insular minority" n79
-- are more abstract and controversial.
Theorists argue bitterly over the relative
significance of these two qualities; n80 one has
argued that they represent separate and
conflicting "tests" for suspectness. n81
Although it is possible to make a case for gay
equality within any one theorist's version of
the meaning of these abstract criteria, n82 this
Section will look behind the abstractions to
formulate a new understanding of their
significance that is consonant with many of the
broad concerns that seem to underlie them.

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   n77 See Developments in the Law -- Equal
Protection, 82 HARV. L. REV. 1065, 1127 (1969).

   n78 See Frontiero v. Richardson, 411 U.S.
677, 686 (1973) (opinion of Brennan, J.)
("[S]ex, like race and national origin, is an
immutable characteristic determined solely by
the accident of birth . . . .").

   n79 See United States v. Carolene Prods., 304
U.S. 144, 152 n.4 (1938) (prejudice against
discrete and insular minorities may be a special
condition calling for heightened judicial
solicitude).

   n80 Compare J. ELY, supra note 31, at 148-53
(arguing that suspect classification doctrine
should protect those who cannot protect
themselves politically), with Tribe, The
Puzzling Persistence of Process-Based
Constitutional Theories, 89 YALE L.J. 1063,
1072-77 (1980) (arguing that substantive values
rather than concern for the political process
should inform suspect classification doctrine).

   n81 See J. BAER, supra note 21, at 119-20
("[The cases] have told us that some
classifications are suspect and some are not;
what they do not do is tell us why.  Or, rather,
they offer two alternative explanations
[immutability, and discreteness and insularity]
that compound the confusion.").

   n82 See Note, An Argument for the Application
of Equal Protection Heightened Scrutiny to
Classifications Based on Homosexuality, 57 S.
CAL. L. REV. 797 (1984) (arguing that gays meet
all of the usual prerequisites for suspectness
and should be considered a suspect class under a
variety of different theories of equal
protection).

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   The proposed theory of suspectness begins
with the identification of two basic
prerequisites to heightened judicial scrutiny:
the group's defining characteristic must be one
essential to personhood, and the group must have
a history of stigmatization and remain subject
to pervasive discrimination.  A trait essential
to personhood has three separate components: it
must be essential to individual identity,
essential to group identity, and essential to
society's perception of those identities.
Individuals within the group must themselves
view the trait as important to their individual
identities; the group defined by the trait must
have some sort of internal sense of group
identity; and society must treat the individual
group members differently for having that
characteristic -- their social experience must
be to some degree defined by the trait.
Although the proposed theory does not pretend to
close the ranks of the suspect classifications
or to draw a clear line between strict and
intermediate scrutiny, n83 it reflects the
common   [*1301]   concerns behind the
traditional criteria of suspectness and provides
a framework for discussing them.  A closer
examination of these criteria will illuminate
the link between them and the proposed theory of
suspectness, and establish the applicability of
the theory to homosexuality.

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   n83 In the years since race was first held to
be an inherently suspect basis for
classification, numerous other characteristics
have been proposed and evaluated for their
suspectness -- among them gender, illegitimacy,
alienage, physical or mental disability, age,
and poverty.  Any theory of suspectness must
provide some means of distinguishing groups that
are in need of special judicial protection.  The
theory offered here provides a framework, albeit
a fluid one, for determining suspectness, one
that is based upon the necessarily elusive
concepts of discrimination and personhood.
Gender would meet the criteria for suspectness
because of the history of unequal treatment of
women and because of the central defining role
of gender in self-identification and group
affiliation.  Physical or mental disability,
age, and poverty are all difficult cases for any
theory of suspectness.  The decision to find any
one of them suspect under the proposed theory
would depend on the resolution of some
fundamentally contested issues: for example,
whether physical or mentally handicapped
individuals have a sufficient group identity to
meet the group affiliation branch of the
personhood triad, whether children or the
elderly suffer sufficient stigma and unequal
treatment, or whether social class is truly
determinative of individual and group
consciousness.  The proposed theory is useful
not because it answers these questions, but
because it asks them.

   Although the Supreme Court has treated both
illegitimacy and alienage as "suspect"
classifications, see Lalli v. Lalli, 439 U.S.
259 (1978) (finding law classifying on the basis
of illegitimacy to be substantially related to
important state interests under an intermediate
standard of review); Graham v. Richardson, 403
U.S. 365, 372 (1971) (declaring classifications
based on alienage to be "inherently suspect and
subject to close judicial scrutiny"), neither of
these characteristics would be considered
determinative of personhood under the proposed
theory of suspectness.  Illegitimate children
may not find the fact that their biological
parents are unmarried to have a great effect on
their sense of personal identity, and
noncitizens may feel no sense of group
affiliation with other noncitizens of different
ethnic origins.  But heightened scrutiny for
illegitimacy and alienage can be justified on
the ground that the law itself creates the
defining characteristic.  In cases in which an
individual, otherwise indistinguishable from
other individuals, is stigmatized and treated
differently because of a characteristic created
and imposed by the state, the state should have
a burden of adequately articulating and
justifying its interest in creating the
characteristic.  Of course, the state's
discrimination generally has its origins in
social intolerance, and thus legal and social
discrimination are related, even if not
identical.  The theory of suspectness proposed
in this Note, however, deals only with the wide
range of socially created differences and social
discrimination; a parallel theory is necessary
to encompass instances of legally created
differences and stigma.

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   All cases and commentators agree that stigma
is the first and most fundamental criterion of
suspectness. n84 The inevitable corollary of
group stigmatization is unequal treatment.
Thus, the frequently invoked idea of stigma is
closely tied to the criterion of historical
unequal treatment.  These two criteria are the
least controversial among competing theorists
and the easiest to justify.  Stigmatization and
discrimination have been hallmarks of the
historical subjugation of American blacks. n85
The continuing presence of such discrimination
is evidence of a concrete harm that needs to be
remedied; heightened scrutiny both compensates
for past suffering and corrects an imbalance
that   [*1302]   the persistent prejudice
creates in the present. Whether this imbalance
is disturbing because it suggests that the
pluralist democratic process is malfunctioning
n86 or because it indicates that substantive
constitutional values are being ignored, n87 it
is universally considered a warning signal that
plays an important role in triggering judicial
intervention.  It is equally uncontroversial
that gays as a group suffer from stigmatization
in all spheres of life. n88 The stigma has
persisted throughout history, across cultures,
n89 and in the United States. n90 Under the
criterion of historical and continuing
discrimination, then, gays qualify for
consideration as a class deserving of heightened
scrutiny.

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   n84 See, e.g., Matthews v. Lucas, 427 U.S.
495, 506 (1976) (finding illegitimacy not to be
subject to strict scrutiny in part because
"discrimination against illegitimates has never
approached the severity or pervasiveness of the
historic legal and political discrimination
against women and Negroes"); Developments in the
Law -- Equal Protection, supra note 77, at 1127
("[T]he question whether opprobrium readily
attaches to a particular classification may be
the touchstone to predicting what other
congenital and unalterable traits will be viewed
as suspect in the future.").

   n85 See Strauder v. West Va., 100 U.S. 303,
308 (1880) (noting that the fourteenth amendment
protects blacks against "legal discrimination,
[which] impl[ies] inferiority in civil society").

   n86 See J. ELY, supra note 31, at 135-79.

   n87 See Ackerman, Beyond Carolene Products,
98 HARV. L. REV. 713, 741 (1985) ("[T]here are
certain substantive principles . . . that
pluralist politicians are simply not allowed to
bargain over in normal American politics.").

   n88 See supra pp. 1285-86.

   n89 See generally HISTORICAL PERSPECTIVES ON
HOMOSEXUALITY (S. Licata & R. Petersen eds.
1981) (a collection of essays and book reviews
on homosexuality from medieval times to the
present in both Europe and the United States).
But see J. BOSWELL, CHRISTIANITY, SOCIAL
TOLERANCE, AND HOMOSEXUALITY 243-66 (1980)
(describing the 11th and 12th centuries as a
time of relative tolerance of Europe's gay
subculture and a flowering of its artistic
expression).

   n90 See, e.g., J. KATZ, GAY AMERICAN HISTORY
(1976).

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   Immutability is a cloudier issue, especially
in the case of homosexuality, because the
origins and mutability of sexual preference are
currently the subjects of vigorous debate. n91
Describing a trait as immutable in an equal
protection analysis often implies that it is
unchosen as well as unalterable. This dual sense
of immutability may be thought significant for
any of several usually unarticulated reasons.
Immutability may be considered important because
it would be pointless to try to deter membership
in the immutable group, or because individual
group members cannot be blamed for their status,
or because immutability heightens the sense of
stigma associated with membership, [*1303]
since no one would choose to be a member if she
did not have to be one.  All of these rationales
rely upon the perceived irrelevance of the
immutable characteristic: unchosen, the trait
merely coexists with the individual and is
irrelevant to the realization of any legitimate
state interest.  These rationales, however, are
called into question by instances in which the
individual, by exercising control over a
supposedly immutable characteristic, refutes the
doctrinal implication that the trait is unwanted
or insignificant. n92 Such instances evoke
abhorrence not because the state is burdening
the individual for an "immutable"
characteristic, but rather because it is
burdening the individual's choice to be different.

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   n91 We simply do not know enough about
biology or psychology to know whether
homosexuality is genetic, the product of early
childhood experience, the interaction of genetic
predisposition and life experience, a matter of
free choice, or a combination of these factors
across the gay population.  See Note, supra note
82, at 817 & nn.134-35 (researchers have not
arrived at a generally accepted explanation of
the development of homosexuality).  We likewise
do not know whether, once established,
homosexuality is subject to voluntary change or
only to disguise.  That people may be gay for
different reasons demonstrates the inadequacy of
an approach using a dictionary sense of
immutability: do we protect only those gays who
were "born that way"?  Such uncertainty as to
the origin of homosexuality argues for more
rather than less protection.  If homosexuality
is indeed immutable once established, see id. at
819-21, then the traditional arguments for
protecting unchosen traits come into play in
addition to the argument presented for the
protection of personhood.  But this Note's
rejection of choice as relevant to suspectness
is consistent with the notion that equal
protection doctrine should be rooted in a
concern for the social status of groups as
opposed to that of individuals.  See Fiss,
Groups and the Equal Protection Clause, 5 PHIL.
& PUB. AFF. 107 (1976) (equal protection
protects specially disadvantaged social groups).
 To the extent that this rejection would invite
too many new candidates for suspectness, the
requirements of stigma and personhood could be
intensified to reduce the number of qualifying
groups.

   n92 Is there a reason to condone
discrimination in the case of a man who has a
sex-change operation more than in the case of
woman who was "born" that way? May a black
person who can "pass" for white be penalized for
consciously refusing to make that choice?  The
possible elaborations of the significance of
immutability cannot adequately address these
hard cases.

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   An alternative view of the importance of
immutability might thus focus on the argument
that the characteristics of race and sex are
important not because they are (usually)
determined at birth, but because they are such
determinative features of personality.  The
unchangeability of race and sex may have been
merely a coincidental attribute used to link
these two suspect groups. n93 We all have a
myriad of immutable characteristics (eye color,
for example) that would never become the grounds
for the creation of a suspect class.  It is not
the "immutability" of race or sex that is the
key to their suspectness, but the important role
that these traits play in self-perception, group
affiliation, and identification by others.
Under this explanation of the significance of
immutability, sexual orientation would take its
place next to race and sex as one of only a
handful of characteristics that have such a
pervasive and profound impact on the three
aspects of personhood. n94

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   n93 See Frontiero v. Richardson, 411 U.S.
677, 686 (1973) (opinion of Brennan, J.) (four
Justices agree that sex should be a suspect
class because it is immutable like race and
national origin).

   n94 For a discussion of other possibly
suspect bases of classification under this
model, see note 83.

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   The most controversial of the current
theories of equal protection is the attempt to
discover a test for suspectness in Chief Justice
Stone's cryptic footnote in Carolene Products,
which singles out "discrete and insular"
minorities as candidates for special judicial
concern. n95 One such approach views heightened
scrutiny for such minorities as necessary to
facilitate their participation in pluralist
democratic politics, in which for some reason
they have not been able to play their fair
[*1304]   role. n96 Yet opponents of this
process model, focusing on the prohibition of
"prejudice" against discrete and insular
minorities rather than on discreteness and
insularity themselves, argue that a
process-oriented theory inevitably requires its
adherents to make substantive choices in order
to distinguish principled, acceptable
distinctions from prejudiced discrimination. 97
These choices must ultimately be made on the
basis of constitutionally enshrined values, such
as dignity and individual choice. n98 Under such
a model, substantive inequality would demand
rigorous judicial scrutiny even if we could be
sure that the minority group had attained its
"appropriate" share of political power.

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   n95 See United States v. Carolene Prods., 304
U.S. 144, 152 n.4 (1938) ("[P]rejudice against
discrete and insular minorities may be a special
condition, which tends seriously to curtail the
operation of those political processes
ordinarily to be relied upon to protect
minorities, and which may call for a
correspondingly more searching judicial
inquiry.").

   n96 See J. ELY, supra note 31, at 145-64.
Even within this pure process model, however,
one can argue persuasively for heightened
judicial protection of homosexuality.  Gay
people's ability to avoid prejudice by "passing"
as straight may lead many to hide in anonymity,
rather than reveal their identity in order to
participate in political life.  See id. at
163-64; Ackerman, supra note 87, at 730-31.  And
even if gays do choose to participate, they may
be so repellent to certain other groups that
they will be unable to bargain effectively in
the political would.  Cf. id. at 732-33
(describing unwillingness of nonminorities to
bargain with certain minority "pariahs").

   n97 See Ackerman, supra note 87, at 741
(arguing that the Carolene Products footnote
conceives of judicial review not only as
perfecting the democratic process but also as
criticizing it by requiring certain fundamental
substantive choices); Baker, Neutrality,
Process, and Rationality, 58 TEX. L. REV. 1029
(1980) (criticizing pure process theories of
equal protection); Tribe, supra note 80, at 1076
(stating that legislation penalizing
homosexuality because of its perceived
repugnance "can be rejected only on the basis of
a principle that is equally substantive: a view
of what it means to be a person, and to have a
sexual identity.  Process and prejudice thus
seem profoundly beside the point.") (citation
omitted).

   n98 See L. TRIBE, supra note 14, @ 16-6, at
1000 (strict scrutiny is necessary "to preserve
substantive values of equality and liberty").
Although theorists may disagree on what these
values imply, see Baker, Outcome Equality or
Equality of Respect: The Substantive Content of
Equal Protection, 131 U. PA. L. REV. 933 (1983)
(contrasting "outcome equality" and "equality of
respect" models), many do agree that strict
scrutiny inevitably involves substantive choices.

- - - - - - - - - - - - - - - - -End Footnotes-
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   Various opponents of the process model focus
on either the protection of individual identity
or the protection of group identity as the
substantive constitutional value implicated by
equal protection analysis. n99 Together, then,
these theorists support the comprehensive sense
of personhood as the confluence of individual,
group, and social identities, proposed in this
Note as the core of equal protection doctrine.
Sexual orientation is essential to all three
aspects of personhood and thus falls clearly
within the boundary of suspectness.  That a gay
person's sexuality is fundamental to her
personal identity is demonstrated by personal
testimonies in gay literature n100 and by the
well-known phenomenon of "coming out," or
publicly acknowledging one's [*1305]   gay
identity.  The significance of sexual
orientation to group identity, both from within
and outside the gay community, is even more
evident, manifested by the existence of gay
bars, bookstores, newspapers, political lobbies,
legal rights committees, and gay neighborhoods
-- in short, gay communities.

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   n99 Compare Tribe, supra note 80, at 1076
(substantive principle implicated by equal
protection is "a view of what it means to be a
person"), with Fiss, supra note 91, at 147-55
(equal protection protects social groups that
have existences and identities apart from those
of their members).

   n100 See, e.g., A. BANNON, I AM A WOMAN
(1959); R. BROWN, THE RUBYFRUIT JUNGLE (1973);
E. WHITE, STATES OF DESIRE: TRAVELS IN GAY
AMERICA (1983).

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   Because homosexuality is a determinative
feature of personhood and because gay people
have historically been victims of stigmatization
and discrimination, courts must subject
legislation that classifies on the basis of
sexual orientation to a heightened standard of
review and must closely scrutinize the state
interests embodied in the legislation.  If these
interests are important or compelling, and if
they are implemented by appropriately tailored
means, they could survive judicial scrutiny.
The acknowledgment of this second step in equal
protection analysis is not a weakness, but a
strength: in light of the

indeterminacy of any theory of suspectness, the
second step becomes the crucial area of debate,
because it forces the state and the courts to
articulate and assess our collective goals in
light of the constitutional mandate of equality.

   B.  Assessing State Goals: Gay Teachers in
the Public Schools

   The federal government and the governments of
most states frequently create classifications on
the basis of sexual preference. n101 But because
courts have not recognized the suspectness of
such classifications, the government has not
been required to articulate the state interests
underlying such legislation.  If the government
were required to do so, would the asserted goals
withstand the heightened judicial scrutiny
proposed above?  Although state interests would
undoubtedly vary from context to context, an
examination of possible justifications for
discrimination against gay public school
teachers is particularly illuminating, both
because public employment falls in the gap left
between privacy and first amendment rights and
because the state interests implicated in the
regulation of the school environment are
considered particularly significant. n102

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   n101 Gay sexual activity is a criminal
offense in many states, see supra note 4, and
gay partners, unlike their heterosexual
counterparts under fornication laws, do not have
the opportunity to "legitimize" their sexual
relations through marriage, see cases cited
supra notes 9 & 27.  Government discrimination
against gay military personnel, see, e.g.,
Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir.
1984), teachers, see supra note 48, and public
employees in general, see Developments in the
Law -- Public Employment, 97 HARV. L. REV. 1611,
1753-56 (1984), is widespread.

   n102 See, e.g., Board of Educ. v. Pico, 457
U.S. 853, 863 (1982) ("The Court has long
recognized that local school boards have broad
discretion in the management of school affairs.").

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   One common justification for dismissing or
refusing to hire gay teachers is that public
knowledge of a teacher's homosexuality will
disrupt the learning process.  That members of
the community may hate and fear gays is offered
as the nexus between a teacher's homosexuality
[*1306]   and her unfitness to teach. n103 The
Supreme Court has rejected this circular
justification for discrimination in the context
of race n104 and has resoundingly affirmed, in
upholding the right of a parent to maintain
custody of her child despite her subsequent
interracial marriage, that the existence of
private antipathy cannot validate state
discrimination:

   The question . . . is whether the reality of
private biases and the possible injury they
might inflict are permissible considerations for
removal of an infant child from the custody of
its natural mother.  We have little difficulty
concluding that they are not.  The Constitution
cannot control such prejudices but neither can
it tolerate them.  Private biases may be outside
the reach of the law, but the law cannot,
directly or indirectly, give them effect. n105

The purpose of special judicial protection would
be undermined if the very circumstance giving
rise to heightened scrutiny -- widespread
discrimination -- could be used to withstand
that scrutiny.

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   n103 See Gaylord v. Tacoma School Dist. No.
10, 88 Wash. 2d 286, 298-99, 559 P.2d 1340,
1346-47, cert. denied, 434 U.S. 879 (1977).

   n104 See Brown v. Board of Educ., 347 U.S.
483, 495 (1954) (declaring racial segregation in
the public schools unconstitutional despite its
widespread entrenchment).

   n105 Palmore v. Sidoti, 104 S. Ct. 1879, 1882
(1984) (footnote omitted); see also M.P. v.
S.P., 169 N.J. Super. 425, 404 A.2d 1256 (App.
Div. 1979) (upholding lesbian mother's right to
custody of children despite the possibility of
prejudice).

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   Although the state would be concerned about
community reactions to the employment of gay
teachers, it would probably focus primarily on
the responses of the schoolchildren themselves,
and argue that the students' possible emulation
of the teacher's lifestyle is the primary evil
to be avoided.  The state might argue that
because teachers serve as role models for their
students and interact with them during
adolescence, permitting gays to teach would
influence some students to become gay
themselves.  A common response to this assertion
is that it is simply not true: teachers have no
influence on the future sexual identity of their
students. n106 This view often relies on the
belief that sexual orientation is genetically
determined or formed in the early years of
childhood.  But because we have not yet
determined the origins of sexual orientation
with any certainty, n107 a response to the
state's articulation of its goal must assume
that the state's fear is to some degree
justified -- that some students who would not
otherwise have done so would engage in gay
sexual activity or even identify themselves as
gay.  Would the prevention of such consequences
constitute a goal weighty enough to withstand
heightened scrutiny?

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   n106 See Reagan, Two Ill-Advised California
Trends, L.A. Herald Examiner, Nov. I, 1978, at
A-19 (commentary by Ronald Reagan stating that
"[a]s to the 'role model' argument, a woman
writing to the editor of a Southern California
newspaper said it all: 'If teachers had such
power over children I would have been a nun
years ago'").

   n107 See supra note 91.

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   [*1307]   The state would probably argue that
an increase in the incidence and acceptability
of homosexuality would pose a threat to the
institutions of marriage and family --
institutions protected in many other contexts.
n108 The flaw in this argument is not that the
goal is invalid, but that the means are
unaccountably underinclusive.  Spinsters,
bachelors, and divorced people are permitted to
teach without challenge, and even unwed mothers
and single pregnant women have won
constitutional protection for their right to
teach, despite their possible encouragement of
untraditional lifestyles. n109 Moreover, the
same arguments about the preservation of
marriage and family were made against equality
for women.  The point is not that these
arguments were wholly incorrect; perhaps they
were not. n110 The important point is that
courts, in subjecting gender classifications to
heightened scrutiny, did not feel compelled to
balance the possible "harm" to social
institutions against the constitutional mandate
of equality; they realized in the gender context
that sometimes institutions have to change. n111
Finally, homosexuality poses a threat only to
the formal definitions of marriage and family,
not necessarily to the values of caring and
responsibility that lie behind them.  Perhaps a
broader conception of family is necessary to
preserve the intimacy and sharing that are the
central objects of the state's concern. n112

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   n108 See, e.g., Moore v. City of E.
Cleveland, 431 U.S. 494 (1977) (striking down
zoning ordinance that prohibited grandmother
from living with her two grandsons); Village of
Belle Terre v. Boraas, 416 U.S. 1 (1974)
(upholding zoning ordinance that limited the
number of unrelated persons who could form a
household); Griswold v. Connecticut, 381 U.S.
479 (1965) (holding that marital privacy
protects married couple's use of contraceptives).

   n109 See Andrews v. Drew Mun.  Separate
School Dist., 507 F.2d 611 (5th Cir. 1975)
(school district rule barring employment of
unwed parents found insufficiently related to
legitimate state objective), cert. dismissed,
425 U.S. 559 (1976); Drake v. Covington County
Bd. of Educ., 371 F. Supp. 974 (M.D. Ala. 1974)
(dismissal of unwed pregnant teacher declared
unconstitutional on privacy grounds).

   n110 See Wall St. J., Oct. 5, 1984, at 35,
col. 3 ("Fifty-three percent of all women work
outside the home; 36% have children; but only
26% are part of traditional nuclear families.").

   n111 See, e.g., Weinberger v. Wiesenfeld, 420
U.S. 636 (1975) (finding Social Security Act's
provision allowing payment of survivor's
benefits to a wife but not to a husband of a
deceased beneficiary was impermissibly intended
to permit women but not men to stay home and
care for children); Frontiero v. Richardson, 411
U.S. 677, 684 (1973) (opinion of Brennan, J.)
(rejecting "'romantic paternalism' which, in
practical effect, put women, not on a pedestal,
but in a cage").

   n112 Cf. Note, Reproductive Technology and
the Procreation Rights of the Unmarried, 98
HARV. L. REV. 669, 678-85 (1985) (arguing that
the right of privacy in matters of family life
should allow unmarried people to use
reproductive technology to create their own
families and foster the values associated with
traditional families).

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   The underinclusiveness of discrimination
against gay teachers for the purpose of
protecting marriage and family suggests that
perhaps another principle motivates the singling
out of gay teachers.  The difference between
divorced and gay teachers is not that the latter
pose a greater threat to the institution of
marriage, but that homosexuality   [*1308]   is
today considered immoral, just as divorce once
was.  If the prevention of immorality is
presented as the state's goal, and homosexuality
is deemed to be immoral, then there is a tight
fit between legislation prohibiting gay teachers
and the legislative goal.  Only the legitimacy
and importance of the goal itself remain to be
questioned.

   Gay litigants have argued that discrimination
against gays is invalid because morality
morality can never be the basis of valid
legislation. n113 There is no question, however,
that the state can and does legislate on the
basis of majoritarian moral values n114 and that
it constitutionally prohibits other forms of
sexual behavior such as incest and polygamy on
the basis of their perceived immorality.  As
Judge Bork noted in his opinion for the D.C.
Circuit denying a rehearing en banc to James
Dronenberg, a naval petty officer dismissed for
private gay conduct: "[M]oral relativism is
hardly a constitutional command . . . ." n115
But when legislation implicates a fundamental
right or burdens a specially protected group,
the affirmation of majoritarian morals has not
been considered important enough to override the
constitutional protection of such rights or
groups.  Because of the special protection
accorded racial minorities, a widespread belief
that interracial marriage is immoral would not
be sufficient to justify anti-miscegenation
statutes. n116 Similarly, because of the special
protection of speech and expression under the
first amendment, the moral offense produced by
pornography cannot validate anti-pornography
statutes in the absence of evidence of actual
harm. n117

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- - - - - - - - - - - - - - - -

   n113 See Dronenburg v. Zech, 741 F.2d 1388,
1397 (D.C. Cir. 1984).

   n114 See id.

   n115 See Dronenburg v. Zech, 746 F.2d 1579,
1583 (D.C. Cir. 1984).

   n116 See Loving v. Virginia, 388 U.S. 1
(1967) (invalidating anti-miscegenation statutes).

   n117 See Note, Anti-Pornography Laws and
First Amendment Values, 98 HARV. L. REV. 460,
462 & nn.9-10 (1984).

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   Thus, moral relativism -- the recognition
that the desire to avert perceived moral harm
does not justify discriminatory treatment --
sometimes is mandated by the Constitution, as
Judge Bork himself acknowledges. n118 It is
mandated when the protection of fundamental
rights or specially protected groups is at
issue. Finding homosexuality to be a suspect
classification thus requires not that a court
invalidate every law that discriminates on that
basis, but that the court make a finding of
actual harm rather than perceived immorality
before upholding such a classification. n119
Such a finding has never been made   [*1309]
and seems highly implausible in the teaching
context.  Some extraordinary contexts, however,
conceivably could permit classification on the
basis of sexual preference.  For example, a
classification based on male homosexuality in
the context of battling AIDS might be justified
by the possibility of actual harm to citizens'
health. n120 The recognition of the suspectness
of sexual orientation steers the debate about
the legitimacy of regulating gay conduct and
lifestyles into the realm of hard data about
actual harm, and forces the majority to
articulate and defend its moral visions.  Thus,
although the suspect class branch of equal
protection analysis is unabashedly
anti-majoritarian in prohibiting certain grounds
for legislation, the second step of weighing
state interests brings majoritarian visions back
into the process; it simply requires these
visions to conform to a higher standard of
necessity.

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   n118 See Dronenburg v. Zech, 741 F.2d 1388,
1397 (D.C. Cir. 1984) ("[T]his deference to
democratic choice does not apply where the
Constitution removes the choice from
majorities.").

   n119 Given that it is partly the existence of
discrimination that gives rise to the imputation
of suspectness in the first place, it may seem
circular to claim that suspect classifications
like homosexuality cannot be the basis of
morally based discrimination.  Mere legislative
discrimination, however, does not automatically
turn its object into a group deserving of
special judicial solicitude.  For instance, laws
prohibiting polygamy do not in themselves make
polygamy a suspect classification; in addition,
the defining trait must be determinative of
individual and group personhood to a degree
implausible in the case of polygamy.

   n120 For example, a regulation imposing a
higher burden of care upon doctors treating gay
male patients or forbidding gay males from
giving blood might withstand heightened
scrutiny.  But because we know so little about
AIDS, its transmission, or its relationship to
homosexuality, such regulations would have to be
scrutinized for any over- or underinclusiveness
that might derive from general social animus
toward gays.

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   IV.  CONCLUSION

   In choosing a constitutional rubric by which
to understand a particular social phenomenon,
one both describes that phenomenon by
classifying it as a certain sort of problem and
prescribes a vision of acceptable social and
legal relations.  The more common bases of
arguments for constitutional protection of
homosexuality -- the right of privacy and the
first amendment -- are neither broad enough in
their conceptions of sexual orientation nor
wide-ranging enough in their remedies to offer
an adequate legal response to the problem of gay
inequality.  An equal protection approach to gay
rights recognizes both that personhood is the
value to be protected and that pervasive
inequality is the evil to be overcome.  Despite
the unwillingness of most courts to recognize
gay rights or to extend the range of suspect
classifications, heightened scrutiny in cases
involving discrimination against gays is
justified by an analysis of the concerns that
should and do lie behind our current conceptions
of suspectness. Moreover, gay equality is not
generally outweighed by any articulable state
interest geared to the prevention of actual
harm.  Recognition of the fit between the theory
of suspect classifications and the nature of
sexual preference -- by the Supreme Court or by
state courts under the states' own equal
protection clauses -- will make good a
constitutional promise long empty for the
American gay community.