Editing Equal Protection Clause (section)

==Sex, disability, and romantic orientation==
Originally, the Fourteenth Amendment did not forbid sex discrimination to the same extent as other forms of discrimination. On the one hand, Section Two of the amendment specifically discouraged states from interfering with the voting rights of "males", which made the amendment anathema to many women when it was proposed in 1866.<ref>Cullen-Dupont, Kathryn. ''Encyclopedia of Women's History in America'', pp. 91-92 (Infobase Publishing, Jan 1, 2009).</ref> On the other hand, as feminists like [[Victoria Woodhull]] pointed out, the word "person" in the Equal Protection Clause was apparently chosen deliberately, instead of a masculine term that could have easily been used instead.<ref>Hymowitz, Carol and Weissman, Michaele. ''[https://books.google.com/books?id=0c-adTP64AsC&pg=PT128 A History of Women in America]'', p. 128 (Random House Digital, 2011).</ref>

In 1971, the U.S. Supreme Court decided ''[[Reed v. Reed]]'', extending the Equal Protection Clause of the Fourteenth Amendment to protect women from sex discrimination, in situations where there is no rational basis for the discrimination.{{cn|date=August 2022}} That level of scrutiny was boosted to an intermediate level in ''[[Craig v. Boren]]'' (1976).<ref>''Craig v. Boren'', 429 U.S. 190 (1976).</ref>

The Supreme Court has been disinclined to extend full "[[suspect classification]]" status (thus making a law that categorizes on that basis subject to greater judicial scrutiny) for groups other than racial minorities and religious groups. In ''[[City of Cleburne v. Cleburne Living Center, Inc.]]'' (1985), the Court refused to make the [[developmental disability|developmentally disabled]] a suspect class. Many commentators have noted, however&mdash;and Justice Thurgood Marshall so notes in his partial concurrence&mdash;that the Court did appear to examine the City of Cleburne's denial of a permit to a group home for intellectually disabled people with a significantly higher degree of scrutiny than is typically associated with the rational-basis test.<ref>See {{cite journal |last=Pettinga |first=Gayle Lynn |year=1987 |title=Rational Basis with Bite: Intermediate Scrutiny by Any Other Name |journal=Indiana Law Journal |volume=62 |page=779 |issn=0019-6665 }}; {{cite journal |last=Wadhwani |first=Neelum J. |year=2006 |title=Rational Reviews, Irrational Results |journal=Texas Law Review |volume=84 |pages=801, 809&ndash;811 |issn=0040-4411 }}</ref>

The Court's decision in ''[[Romer v. Evans]]'' (1996) struck down a [[Colorado]] constitutional amendment aimed at denying homosexuals "minority status, quota preferences, protected status or [a] claim of discrimination." The Court rejected as "implausible" the dissent's argument that the amendment would not deprive homosexuals of general protections provided to everyone else but rather would merely prevent "special treatment of homosexuals."<ref>Kuligowski, Monte. "Romer v. Evans: Judicial Judgment or Emotive Utterance?," ''Journal of Civil Rights and Economic Development'', Vol. 12 (1996).</ref> Much as in ''City of Cleburne'', the ''Romer'' decision seemed to employ a markedly higher level of scrutiny than the nominally applied rational-basis test.<ref>{{cite journal |last=Joslin |first=Courtney |year=1997 |title=Equal Protection and Anti-Gay Legislation |journal=Harvard Civil Rights-Civil Liberties Law Review |volume=32 |pages=225, 240 |issn=0017-8039 |quote=The ''Romer'' Court applied a more 'active,' ''Cleburne''-like rational basis standard ...}}; {{cite journal |last=Farrell |first=Robert C. |year=1999 |title=Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through ''Romer v. Evans'' |journal=Indiana Law Review |volume=32 |page=357 |issn=0019-6665 }}</ref>

In ''[[Lawrence v. Texas]]'' (2003), the Court struck down a Texas statute prohibiting [[homosexual]] [[sodomy]] on substantive due process grounds. In Justice [[Sandra Day O'Connor]]'s opinion concurring in the judgment, however, she argued that by prohibiting only ''homosexual'' sodomy, and not ''heterosexual'' sodomy as well, Texas's statute did not meet rational-basis review under the Equal Protection Clause; her opinion prominently cited ''City of Cleburne'', and also relied in part on ''Romer''. Notably, O'Connor's opinion did not claim to apply a higher level of scrutiny than mere rational basis, and the Court has not extended suspect-class status to [[sexual orientation]].

While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation, in which case intermediate scrutiny could apply to gay rights cases.<ref>See {{cite journal |last=Koppelman |first=Andrew |year=1994 |title=Why Discrimination against Lesbians and Gay Men is Sex Discrimination |journal=New York University Law Review |volume=69 |page=197 |issn=0028-7881 }}; see also <u>[[Fricke v. Lynch]]</u>, 491 F.Supp. 381, 388, fn. 6 (1980), ''vacated'' 627 F.2d 1088 [case decided on First Amendment free-speech grounds, but "This case can also be profitably analyzed under the Equal Protection Clause of the fourteenth amendment. In preventing Aaron Fricke from attending the senior reception, the school has afforded disparate treatment to a certain class of students those wishing to attend the reception with companions of the same sex."]</ref> Other scholars disagree, arguing that "homophobia" is distinct from sexism, in a sociological sense, and so treating it as such would be an unacceptable judicial shortcut.<ref>Gerstmann, Evan. '' [https://archive.org/details/samesexmarriagec0000gers/page/55 Same Sex Marriage and the Constitution]'', p. 55 (Cambridge University Press, 2004).</ref>

In 2013, the Court struck down part of the federal [[Defense of Marriage Act]], in ''[[United States v. Windsor]]''. No state statute was in question, and therefore the Equal Protection Clause did not apply. The Court did employ similar principles, however, in combination with [[federalism]] principles. The Court did not purport to use any level of scrutiny more demanding than rational basis review, according to law professor [[Erwin Chemerinsky]].<ref>Chemerinsky, Erwin. "[http://m.law.com/module/alm/app/nlj.do#!/article/1029801790 Justice Kennedy's World] {{Webarchive|url=https://web.archive.org/web/20130709102734/http://m.law.com/module/alm/app/nlj.do#!/article/1029801790 |date=2013-07-09 }}", ''[[The National Law Journal]]'' (July 1, 2013): "There is another similarity between his opinion in Windsor and his earlier ones in Romer and Lawrence: the Supreme Court invalidated the law without using heightened scrutiny for sexual-orientation discrimination ... A law based on animus fails to meet even rational-basis review so there was no need to adopt a higher level of scrutiny."</ref> The four dissenting justices argued that the authors of the statute were rational.<ref>''[http://www2.bloomberglaw.com/public/mobile/document/United_States_v_Windsor_No_12307_2013_BL_168683_US_June_26_2013_C/1 United States v. Windsor] {{Webarchive|url=https://web.archive.org/web/20150427114531/http://www2.bloomberglaw.com/public/mobile/document/United_States_v_Windsor_No_12307_2013_BL_168683_US_June_26_2013_C/1 |date=2015-04-27 }}'', No. 12-307, 2013 BL 169620, 118 FEP Cases 1417 (U.S. June 26, 2013).</ref>

In 2015, the Supreme Court held in ''[[Obergefell v. Hodges]]'' that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and required all states to issue marriage licenses to same-sex couples and to recognize same-sex marriages validly performed in other jurisdictions.