Document Type

Working Paper

Publication Date

2005

Center/Program

Center for Gender & Sexuality Law

Abstract

Equality Without Tiers offers a comprehensive analysis of tiered equal protection review and argues that the current framework has outlived its utility and functions in many respects as a barrier to equality. As an alternative to the current ossified test, the article develops and tests a single standard of review aimed to provide a more finely calibrated response to the complexities of discrimination in the 21st century. To support this argument, the article focuses first on tensions in the current tiered framework for equal protection review, pointing to, among others, the Court's variously weak and strong approaches to rational basis review and the largely acontextual approach to affirmative action. Then, after identifying class legislation as the key focus of equal protection analysis, the article distills a single standard from the Court's extant equal protection jurisprudence. With this standard in place, I argue, both theoretically and through application of the standard to the several equal protection cases decided during the past three decades, that a single standard can enable sufficiently careful review to capture prejudice-infested classifications while not becoming excessively rigid. Against this background, the article concludes that the tiers may be understood best as a transitional analytic tool to assist courts in identifying impermissible bias in once-natural classifications. At the same time, I argue that the analysis prompted by the tiers is unduly simplistic and that serious scholarly consideration should be given to the possibilities for equal protection review opened up by a single review standard.

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