Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell"

Yale Law Journal

Volumn 108, Issue 3, 1998, Pages 485-570

  Yoshino, Kenji ^a  

^a NONE

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EID: 0013322019     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797496     Document Type: Article

References (399)

1. As the indefinite article suggests, this is not the only assimilationist bias in equal protection doctrine. I discuss three forms of assimilationist bias further at the beginning of Part III. See infra notes 60-73 and accompanying text.
2. See, e.g., Adarand Constructors v. Pena, 515 U.S. 200, 227 (1995) (plurality opinion); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (noting that statutes using classifications subjected to strict scrutiny such as race, national origin, and alienage will be upheld only if "suitably tailored to serve a compelling state interest"); Bernal v. Fainter, 467 U.S. 216, 219 (1984) (noting that statutes discriminating on the basis of alienage, a classification subject to strict scrutiny, will be upheld only if they "advance a compelling state interest by the least restrictive means available").
3. United States v. Virginia, 518 U.S. 515, 516 (1996) (citations and internal quotation marks omitted); see also Clark v. Jeter, 486 U.S. 456, 461 (1988) (noting that statutes using classifications subject to intermediate scrutiny, such as sex or illegitimacy, will be upheld only if "substantially related to an important governmental objective"); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723 (1982) (noting that "statutes employing gender classifications will be upheld only if the classifications serves "important governmental objectives" and "the discriminatory means employed are substantially related to the achievement of those objectives" (citations and internal quotation marks omitted)).
4. . Heller v. Doe, 509 U.S. 312, 319 (1993); see also Lyng v. International Union, 485 U.S. 360, 370 (1988) (noting that when a statute does not impact a fundamental right or a protected class, a court's inquiry is confined to determining "whether the statutory classification is rationally related to a legitimate governmental interest" (citation and internal quotation marks omitted)).
5. Historically, the application of strict scrutiny led to such consistent invalidation of legislation that the standard was understood to be "'strict' in theory but fatal in fact." Gerald 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) (coining the phrase); see also Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring) (noting that conventional strict scrutiny is "strict in theory, but fatal in fact" (citing Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 362 (1978))). Similarly, the rational review standard resulted in such uniform upholding of statutes that it was understood to constitute a free pass for legislation. See CONSTITUTIONAL LAW 606 (John E. Nowak & Ronald D. Rotunda eds., 5th ed. 1995) (noting that the correlation between the application of rational review and the upholding of legislation appeared to be perfect between 1937 and 1976). More recently, both understandings have required revision. The Supreme Court has expressly disavowed that strict scrutiny is always fatal in practice. See Adarand, 515 U.S. at 237 ("[W]e wish to dispel the notion that strict scrutiny is 'strict in theory but fatal in fact.'" (citing Fullilove, 448 U.S. at 519)). Legislation has also been struck down on rational review, see Cleburne, 473 U.S. 432; Plyler v. Doe, 457 U.S. 202 (1982), leading some commentators to believe that a fourth tier of review - the so-called "rational basis with teeth" standard - has been created, see, e.g., Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 CONST. COMMENTARY 257, 260 (1996) (citing David O. Stewart, Supreme Court Report: A Growing Equal Protection Clause?, 71 A.B.A. J. 108, 112 (1985)). These exceptions, however, have not seriously altered the status quo. The Supreme Court's observation in a post-Adarand case that "[s]trict scrutiny remains, nonetheless, strict," Bush v. Vera, 517 U.S. 952, 978 (1996), is bolstered by the fact that, even after Adarand, legislation has been systematically struck down when strict scrutiny is applied, see, e.g., id. at 952; Miller v. Johnson, 515 U.S. 900 (1995); Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996). Similarly, the Court's statement in a post-Cleburne case that rational review remains highly deferential, see Heller, 509 U.S. at 319-21, is supported by the fact that, even after Plyler and Cleburne, legislation has been repeatedly upheld when rational basis review is applied, see, e.g., Heller, 509 U.S. at 312; Vacco v. Quill, 117 S. Ct. 2293 (1997); Washington v. Glucksberg, 117 S. Ct. 2258 (1997). But see Romer v. Evans, 517 U.S. 620 (1996). Indeed, the reality that the new nomenclature of "rational review with teeth" was necessary to describe rational review leading to the invalidation of legislation reflects the power of the intuition that rational review simpliciter never results in such invalidation.
6. Historically, the application of strict scrutiny led to such consistent invalidation of legislation that the standard was understood to be "'strict' in theory but fatal in fact." Gerald 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) (coining the phrase); see also Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring) (noting that conventional strict scrutiny is "strict in theory, but fatal in fact" (citing Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 362 (1978))). Similarly, the rational review standard resulted in such uniform upholding of statutes that it was understood to constitute a free pass for legislation. See CONSTITUTIONAL LAW 606 (John E. Nowak & Ronald D. Rotunda eds., 5th ed. 1995) (noting that the correlation between the application of rational review and the upholding of legislation appeared to be perfect between 1937 and 1976). More recently, both understandings have required revision. The Supreme Court has expressly disavowed that strict scrutiny is always fatal in practice. See Adarand, 515 U.S. at 237 ("[W]e wish to dispel the notion that strict scrutiny is 'strict in theory but fatal in fact.'" (citing Fullilove, 448 U.S. at 519)). Legislation has also been struck down on rational review, see Cleburne, 473 U.S. 432; Plyler v. Doe, 457 U.S. 202 (1982), leading some commentators to believe that a fourth tier of review - the so-called "rational basis with teeth" standard - has been created, see, e.g., Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 CONST. COMMENTARY 257, 260 (1996) (citing David O. Stewart, Supreme Court Report: A Growing Equal Protection Clause?, 71 A.B.A. J. 108, 112 (1985)). These exceptions, however, have not seriously altered the status quo. The Supreme Court's observation in a post-Adarand case that "[s]trict scrutiny remains, nonetheless, strict," Bush v. Vera, 517 U.S. 952, 978 (1996), is bolstered by the fact that, even after Adarand, legislation has been systematically struck down when strict scrutiny is applied, see, e.g., id. at 952; Miller v. Johnson, 515 U.S. 900 (1995); Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996). Similarly, the Court's statement in a post-Cleburne case that rational review remains highly deferential, see Heller, 509 U.S. at 319-21, is supported by the fact that, even after Plyler and Cleburne, legislation has been repeatedly upheld when rational basis review is applied, see, e.g., Heller, 509 U.S. at 312; Vacco v. Quill, 117 S. Ct. 2293 (1997); Washington v. Glucksberg, 117 S. Ct. 2258 (1997). But see Romer v. Evans, 517 U.S. 620 (1996). Indeed, the reality that the new nomenclature of "rational review with teeth" was necessary to describe rational review leading to the invalidation of legislation reflects the power of the intuition that rational review simpliciter never results in such invalidation.
7. Historically, the application of strict scrutiny led to such consistent invalidation of legislation that the standard was understood to be "'strict' in theory but fatal in fact." Gerald 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) (coining the phrase); see also Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring) (noting that conventional strict scrutiny is "strict in theory, but fatal in fact" (citing Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 362 (1978))). Similarly, the rational review standard resulted in such uniform upholding of statutes that it was understood to constitute a free pass for legislation. See CONSTITUTIONAL LAW 606 (John E. Nowak & Ronald D. Rotunda eds., 5th ed. 1995) (noting that the correlation between the application of rational review and the upholding of legislation appeared to be perfect between 1937 and 1976). More recently, both understandings have required revision. The Supreme Court has expressly disavowed that strict scrutiny is always fatal in practice. See Adarand, 515 U.S. at 237 ("[W]e wish to dispel the notion that strict scrutiny is 'strict in theory but fatal in fact.'" (citing Fullilove, 448 U.S. at 519)). Legislation has also been struck down on rational review, see Cleburne, 473 U.S. 432; Plyler v. Doe, 457 U.S. 202 (1982), leading some commentators to believe that a fourth tier of review - the so-called "rational basis with teeth" standard - has been created, see, e.g., Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 CONST. COMMENTARY 257, 260 (1996) (citing David O. Stewart, Supreme Court Report: A Growing Equal Protection Clause?, 71 A.B.A. J. 108, 112 (1985)). These exceptions, however, have not seriously altered the status quo. The Supreme Court's observation in a post-Adarand case that "[s]trict scrutiny remains, nonetheless, strict," Bush v. Vera, 517 U.S. 952, 978 (1996), is bolstered by the fact that, even after Adarand, legislation has been systematically struck down when strict scrutiny is applied, see, e.g., id. at 952; Miller v. Johnson, 515 U.S. 900 (1995); Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996). Similarly, the Court's statement in a post-Cleburne case that rational review remains highly deferential, see Heller, 509 U.S. at 319-21, is supported by the fact that, even after Plyler and Cleburne, legislation has been repeatedly upheld when rational basis review is applied, see, e.g., Heller, 509 U.S. at 312; Vacco v. Quill, 117 S. Ct. 2293 (1997); Washington v. Glucksberg, 117 S. Ct. 2258 (1997). But see Romer v. Evans, 517 U.S. 620 (1996). Indeed, the reality that the new nomenclature of "rational review with teeth" was necessary to describe rational review leading to the invalidation of legislation reflects the power of the intuition that rational review simpliciter never results in such invalidation.
8. Historically, the application of strict scrutiny led to such consistent invalidation of legislation that the standard was understood to be "'strict' in theory but fatal in fact." Gerald 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) (coining the phrase); see also Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring) (noting that conventional strict scrutiny is "strict in theory, but fatal in fact" (citing Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 362 (1978))). Similarly, the rational review standard resulted in such uniform upholding of statutes that it was understood to constitute a free pass for legislation. See CONSTITUTIONAL LAW 606 (John E. Nowak & Ronald D. Rotunda eds., 5th ed. 1995) (noting that the correlation between the application of rational review and the upholding of legislation appeared to be perfect between 1937 and 1976). More recently, both understandings have required revision. The Supreme Court has expressly disavowed that strict scrutiny is always fatal in practice. See Adarand, 515 U.S. at 237 ("[W]e wish to dispel the notion that strict scrutiny is 'strict in theory but fatal in fact.'" (citing Fullilove, 448 U.S. at 519)). Legislation has also been struck down on rational review, see Cleburne, 473 U.S. 432; Plyler v. Doe, 457 U.S. 202 (1982), leading some commentators to believe that a fourth tier of review - the so-called "rational basis with teeth" standard - has been created, see, e.g., Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 CONST. COMMENTARY 257, 260 (1996) (citing David O. Stewart, Supreme Court Report: A Growing Equal Protection Clause?, 71 A.B.A. J. 108, 112 (1985)). These exceptions, however, have not seriously altered the status quo. The Supreme Court's observation in a post-Adarand case that "[s]trict scrutiny remains, nonetheless, strict," Bush v. Vera, 517 U.S. 952, 978 (1996), is bolstered by the fact that, even after Adarand, legislation has been systematically struck down when strict scrutiny is applied, see, e.g., id. at 952; Miller v. Johnson, 515 U.S. 900 (1995); Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996). Similarly, the Court's statement in a post-Cleburne case that rational review remains highly deferential, see Heller, 509 U.S. at 319-21, is supported by the fact that, even after Plyler and Cleburne, legislation has been repeatedly upheld when rational basis review is applied, see, e.g., Heller, 509 U.S. at 312; Vacco v. Quill, 117 S. Ct. 2293 (1997); Washington v. Glucksberg, 117 S. Ct. 2258 (1997). But see Romer v. Evans, 517 U.S. 620 (1996). Indeed, the reality that the new nomenclature of "rational review with teeth" was necessary to describe rational review leading to the invalidation of legislation reflects the power of the intuition that rational review simpliciter never results in such invalidation.
9. Since the formal recognition of intermediate scrutiny in Craig v. Boren, 429 U.S. 190 (1976), the Supreme Court has divided scrutiny into three rhetorical categories - strict, intermediate, and rational. See cases cited supra notes 2-4. In the aftermath of United States v. Virginia, however, it has become unclear whether there is any real difference between strict and intermediate scrutiny. The majority in Virginia stated that in order to survive the intermediate scrutiny test triggered by gender-based classifications, the state must proffer an "exceedingly persuasive justification" for its action. See 518 U.S. at 531 (citations omitted). As Chief Justice Rehnquist's concurrence noted, the majority's holding "introduce[d] an element of uncertainty respecting the appropriate test," because this standard seems quite close to strict scrutiny. Id. at 559 (Rehnquist, C.J., concurring). It is unclear not only whether there is now any real difference between strict and intermediate scrutiny but also whether there ever has been. Cass Sunstein has pointed out that while the Virginia Court "did not merely restate the intermediate scrutiny test but pressed it closer to strict scrutiny," this rapprochement was "not a dramatic innovation." Cass Sunstein, The Supreme Court 1995 Term - Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4, 75 (1996). This is because "[t]he revision of the standard of review is unlikely to produce different results from those that would have followed under the intermediate scrutiny standard, which has operated quite strictly 'in fact.'" Id. (citation omitted). It seems useful to recognize rhetorically the Court's practical conflation of these two terms. I therefore use the term "heightened scrutiny" in this Article to encompass both strict and intermediate scrutiny. This usage is not meant to express disagreement with the position that intermediate scrutiny could mean something different from strict scrutiny. See generally Jay Wexler, Defending the Middle Way: Intermediate Scrutiny as Judicial Minimalism, 66 GEO. WASH. L. REV. 298 (1998) (arguing for an intermediate scrutiny standard that is distinct from the current strict scrutiny standard). Rather, it is predicated on the pragmatic assumption that the Court is unlikely to differentiate between the two standards.
10. Since the formal recognition of intermediate scrutiny in Craig v. Boren, 429 U.S. 190 (1976), the Supreme Court has divided scrutiny into three rhetorical categories - strict, intermediate, and rational. See cases cited supra notes 2-4. In the aftermath of United States v. Virginia, however, it has become unclear whether there is any real difference between strict and intermediate scrutiny. The majority in Virginia stated that in order to survive the intermediate scrutiny test triggered by gender-based classifications, the state must proffer an "exceedingly persuasive justification" for its action. See 518 U.S. at 531 (citations omitted). As Chief Justice Rehnquist's concurrence noted, the majority's holding "introduce[d] an element of uncertainty respecting the appropriate test," because this standard seems quite close to strict scrutiny. Id. at 559 (Rehnquist, C.J., concurring). It is unclear not only whether there is now any real difference between strict and intermediate scrutiny but also whether there ever has been. Cass Sunstein has pointed out that while the Virginia Court "did not merely restate the intermediate scrutiny test but pressed it closer to strict scrutiny," this rapprochement was "not a dramatic innovation." Cass Sunstein, The Supreme Court 1995 Term - Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4, 75 (1996). This is because "[t]he revision of the standard of review is unlikely to produce different results from those that would have followed under the intermediate scrutiny standard, which has operated quite strictly 'in fact.'" Id. (citation omitted). It seems useful to recognize rhetorically the Court's practical conflation of these two terms. I therefore use the term "heightened scrutiny" in this Article to encompass both strict and intermediate scrutiny. This usage is not meant to express disagreement with the position that intermediate scrutiny could mean something different from strict scrutiny. See generally Jay Wexler, Defending the Middle Way: Intermediate Scrutiny as Judicial Minimalism, 66 GEO. WASH. L. REV. 298 (1998) (arguing for an intermediate scrutiny standard that is distinct from the current strict scrutiny standard). Rather, it is predicated on the pragmatic assumption that the Court is unlikely to differentiate between the two standards.
11. See, e.g., Vera, 517 U.S. at 952 (subjecting voting districts drawn with race as the predominant factor to strict scrutiny); Adarand, 515 U.S. at 200 (subjecting federal contracting program designed to help racial minorities to strict scrutiny); Korematsu v. United States, 323 U.S. 214 (1944) (subjecting legislation excluding individuals of Japanese ancestry from the U.S. West Coast to the "most rigid" scrutiny).
12. See, e.g., United States v. Virginia, 518 U.S. at 515 (subjecting a public college's gender-based admissions policy to intermediate scrutiny); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (subjecting gender-based peremptory strikes to intermediate scrutiny); Craig, 429 U.S. at 190 (subjecting gender-based discrimination in statutes regulating the sale of alcohol to intermediate scrutiny).
13. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (subjecting to heightened scrutiny a public school's preferential layoff protection scheme for employees based on, inter alia, their national origin); Oyama v. California, 332 U.S. 633 (1948) (subjecting a land-transfer statute that discriminated on the basis of national origin to heightened scrutiny).
14. See, e.g., Bernal v. Fainter, 467 U.S. 216 (1984) (subjecting a statute that required notaries public to be U.S. citizens to strict scrutiny); Nyquist v. Mauclet, 432 U.S. 1 (1977) (subjecting a statute barring certain resident aliens from state financial assistance for higher education to strict scrutiny); Graham v. Richardson, 403 U.S. 365 (1971) (subjecting legislation that conditioned welfare benefits on citizenship to heightened scrutiny).
15. See, e.g., Clark v. Jeter, 486 U.S. 456 (1988) (subjecting to heightened scrutiny a statute that imposed a six-year statute of limitations for establishing paternity); Lalli v. Lalli, 439 U.S. 259 (1978) (subjecting to intermediate scrutiny a statute that required illegitimate children to prove paternity before inheriting from their putative fathers); Trimble v. Gordon, 430 U.S. 762 (1977) (subjecting to heightened scrutiny a statute that permitted legitimate, but not illegitimate, children to inherit from their intestate fathers).
16. See Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410, 2441 (1994).
17. See, e.g., Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987) (quoting Lyng v. Castillo, 477 U.S. 635, 638 (1986)) (denying application of the heightened scrutiny standard when reviewing statutory classifications in the federal Aid to Families with Dependent Children program); Lyng, 477 U.S. at 638 (reaching the same conclusion for statutory classifications created by the federal Food Stamps program). For other applications of these factors, see, for example, High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990); Watkins v. United States Army, 837 F.2d 1428, 1444-48 (9th Cir.), amended by 847 F.2d 1329 (9th Cir. 1988), vacated and aff'd on other grounds, 875 F.2d 699 (9th Cir. 1989) (en banc); Ledesma v. Block, 825 F.2d 1046, 1052 (6th Cir. 1987); Cervantes v. Guerra, 651 F.2d 974, 979 (5th Cir. Unit A July 1981); and Spence v. Miles Laboratories, Inc., 810 F. Supp. 952, 962 (E.D. Tenn. 1992).
18. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST 150 (1980) (arguing that because a plurality of the Court in Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion), explicitly noted that intelligence and physical disability are not suspect despite their immutability, and because race and gender are mutable at some level, immutability is not actually a factor and that the real test is relevance to legislative purposes); J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2323-24 (1997) (noting that immutability is neither necessary nor sufficient because the issue is really whether a trait can sustain a stable social meaning); Chai R. Feldblum, Sexual Orientation, Morality, and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237, 278-79 (1996) (arguing that immutability can describe traits that are either beyond the bearer's control or passive rather than behavioral, and that the first meaning may be read broadly to include characteristics that are difficult to change); Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. REV. 915, 926-27 (1989) [hereinafter Halley, Politics of the Closet] (arguing that courts are retreating from the immutability factor and that under a process failure theory, mutable groups may have less political power); Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503, 507-16 (1994) [hereinafter Halley, Politics of Biology] (arguing that the courts have replaced immutability with a concern for political process failure); Nan D. Hunter, Life After Hardwick, 27 HARV. C.R.-C.L. L. REV. 531, 550 (1992) (arguing that the question of immutability is less important than the question of coercion).
19. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST 150 (1980) (arguing that because a plurality of the Court in Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion), explicitly noted that intelligence and physical disability are not suspect despite their immutability, and because race and gender are mutable at some level, immutability is not actually a factor and that the real test is relevance to legislative purposes); J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2323-24 (1997) (noting that immutability is neither necessary nor sufficient because the issue is really whether a trait can sustain a stable social meaning); Chai R. Feldblum, Sexual Orientation, Morality, and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237, 278-79 (1996) (arguing that immutability can describe traits that are either beyond the bearer's control or passive rather than behavioral, and that the first meaning may be read broadly to include characteristics that are difficult to change); Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. REV. 915, 926-27 (1989) [hereinafter Halley, Politics of the Closet] (arguing that courts are retreating from the immutability factor and that under a process failure theory, mutable groups may have less political power); Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503, 507-16 (1994) [hereinafter Halley, Politics of Biology] (arguing that the courts have replaced immutability with a concern for political process failure); Nan D. Hunter, Life After Hardwick, 27 HARV. C.R.-C.L. L. REV. 531, 550 (1992) (arguing that the question of immutability is less important than the question of coercion).
20. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST 150 (1980) (arguing that because a plurality of the Court in Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion), explicitly noted that intelligence and physical disability are not suspect despite their immutability, and because race and gender are mutable at some level, immutability is not actually a factor and that the real test is relevance to legislative purposes); J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2323-24 (1997) (noting that immutability is neither necessary nor sufficient because the issue is really whether a trait can sustain a stable social meaning); Chai R. Feldblum, Sexual Orientation, Morality, and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237, 278-79 (1996) (arguing that immutability can describe traits that are either beyond the bearer's control or passive rather than behavioral, and that the first meaning may be read broadly to include characteristics that are difficult to change); Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. REV. 915, 926-27 (1989) [hereinafter Halley, Politics of the Closet] (arguing that courts are retreating from the immutability factor and that under a process failure theory, mutable groups may have less political power); Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503, 507-16 (1994) [hereinafter Halley, Politics of Biology] (arguing that the courts have replaced immutability with a concern for political process failure); Nan D. Hunter, Life After Hardwick, 27 HARV. C.R.-C.L. L. REV. 531, 550 (1992) (arguing that the question of immutability is less important than the question of coercion).
21. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST 150 (1980) (arguing that because a plurality of the Court in Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion), explicitly noted that intelligence and physical disability are not suspect despite their immutability, and because race and gender are mutable at some level, immutability is not actually a factor and that the real test is relevance to legislative purposes); J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2323-24 (1997) (noting that immutability is neither necessary nor sufficient because the issue is really whether a trait can sustain a stable social meaning); Chai R. Feldblum, Sexual Orientation, Morality, and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237, 278-79 (1996) (arguing that immutability can describe traits that are either beyond the bearer's control or passive rather than behavioral, and that the first meaning may be read broadly to include characteristics that are difficult to change); Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. REV. 915, 926-27 (1989) [hereinafter Halley, Politics of the Closet] (arguing that courts are retreating from the immutability factor and that under a process failure theory, mutable groups may have less political power); Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503, 507-16 (1994) [hereinafter Halley, Politics of Biology] (arguing that the courts have replaced immutability with a concern for political process failure); Nan D. Hunter, Life After Hardwick, 27 HARV. C.R.-C.L. L. REV. 531, 550 (1992) (arguing that the question of immutability is less important than the question of coercion).
22. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST 150 (1980) (arguing that because a plurality of the Court in Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion), explicitly noted that intelligence and physical disability are not suspect despite their immutability, and because race and gender are mutable at some level, immutability is not actually a factor and that the real test is relevance to legislative purposes); J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2323-24 (1997) (noting that immutability is neither necessary nor sufficient because the issue is really whether a trait can sustain a stable social meaning); Chai R. Feldblum, Sexual Orientation, Morality, and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237, 278-79 (1996) (arguing that immutability can describe traits that are either beyond the bearer's control or passive rather than behavioral, and that the first meaning may be read broadly to include characteristics that are difficult to change); Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. REV. 915, 926-27 (1989) [hereinafter Halley, Politics of the Closet] (arguing that courts are retreating from the immutability factor and that under a process failure theory, mutable groups may have less political power); Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503, 507-16 (1994) [hereinafter Halley, Politics of Biology] (arguing that the courts have replaced immutability with a concern for political process failure); Nan D. Hunter, Life After Hardwick, 27 HARV. C.R.-C.L. L. REV. 531, 550 (1992) (arguing that the question of immutability is less important than the question of coercion).
23. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST 150 (1980) (arguing that because a plurality of the Court in Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion), explicitly noted that intelligence and physical disability are not suspect despite their immutability, and because race and gender are mutable at some level, immutability is not actually a factor and that the real test is relevance to legislative purposes); J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2323-24 (1997) (noting that immutability is neither necessary nor sufficient because the issue is really whether a trait can sustain a stable social meaning); Chai R. Feldblum, Sexual Orientation, Morality, and the Law: Devlin Revisited, 57 U. PITT. L. REV. 237, 278-79 (1996) (arguing that immutability can describe traits that are either beyond the bearer's control or passive rather than behavioral, and that the first meaning may be read broadly to include characteristics that are difficult to change); Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity, 36 UCLA L. REV. 915, 926-27 (1989) [hereinafter Halley, Politics of the Closet] (arguing that courts are retreating from the immutability factor and that under a process failure theory, mutable groups may have less political power); Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 STAN. L. REV. 503, 507-16 (1994) [hereinafter Halley, Politics of Biology] (arguing that the courts have replaced immutability with a concern for political process failure); Nan D. Hunter, Life After Hardwick, 27 HARV. C.R.-C.L. L. REV. 531, 550 (1992) (arguing that the question of immutability is less important than the question of coercion).
24. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442-43 n.10 (1985) (quoting ELY, supra note 14, at 150); Watkins, 837 F.2d at 1446 (citing Laurence Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063, 1073-74 n.52 (1980)). For Tribe's critique of immutability, see infra note 83.
25. See, e.g., Watkins, 837 F.2d at 1446.
26. See, e.g., High Tech Gays v. Defense Indus. Sec. Clearance Office, 909 F.2d 375, 377 (9th Cir. 1990) (Canby, J., dissenting); Able v. United States, 968 F. Supp. 850, 863 (E.D.N.Y. 1997), rev'd on other grounds, 155 F.3d 628 (2d Cir. 1998); Jantz v. Muci, 759 F. Supp. 1543, 1548 (D. Kan. 1991), rev'd, 976 F.2d 623 (10th Cir. 1992).
27. See, e.g., Cleburne, 473 U.S. at 440-41; Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312-14 (1976); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24-28 (1973).
28. That immutability has been soundly critiqued at the academic level, however, does not mean that it is not still a live issue at the litigation level. See William B. Rubenstein, Divided We Litigate: Addressing Disputes Among Group Members and Lawyers in Civil Rights Campaigns, 106 YALE L.J. 1623, 1642-43 (1997). Thus, if my points about immutability persuade anyone to jettison the immutability factor, that outcome will be welcomed as a positive externality of this argument.
29. See 7 THE OXFORD ENGLISH DICTIONARY 693 (2d ed. 1989).
30. See 19 id. at 687.
31. See, e.g., Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (citing Lyng v. Castillo, 477 U.S. 635, 638 (1986)). For other applications of this test, see cases cited supra note 13.
32. 837 F.2d 1428 (9th Cir.), amended by 847 F.2d 1329 (9th Cir. 1988), vacated and aff'd on other grounds, 875 F.2d 699 (9th Cir. 1989) (en banc). After 14 years of exemplary service, Perry Watkins was discharged by the Army because of statements he had made about his own homosexuality. See Watkins, 837 F.2d at 1429. Although he had informed the U.S. Army that he was gay when he enlisted, Watkins was permitted to serve until new regulations were promulgated in 1981, requiring the discharge of all homosexual servicemembers. See id. Watkins then brought suit challenging his discharge on, inter alia, equal protection grounds. See id. at 1433. In considering the equal protection claim, a panel of the Ninth Circuit found that homosexuals were a suspect class deserving of heightened scrutiny, in part because they were marked by an immutable trait. See id. at 1446. Subjecting the regulation to such scrutiny, the panel struck down the regulations. See id. at 1448-51. The panel's decision was then appealed to the Ninth Circuit sitting en banc. The en banc court found that the case was better decided (again in Watkins' favor) on equitable estoppel grounds, and the panel's decision was withdrawn. See Watkins, 875 F.2d at 711. Because the en banc court did not address the equal protection issue, however, it should not be read as registering disapproval (or approval) of the panel decision's discussion of immutability.
33. Watkins, 837 F.2d at 1446.
34. Id.
35. 26. Id.
36. See id.
37. See id. ("Under either formulation, we have no trouble concluding that sexual orientation is immutable for the purposes of equal protection doctrine.").
38. Id.
39. The Watkins panel's deployment of personhood immutability can be read as a valiant attempt to circumvent assimilationist bias, as personhood immutability diverts the court's attention away from the group's ability to assimilate and redirects it toward the validity of the legislation.
40. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion) (describing race, sex, and national origin, but not alienage, as immutable characteristics).
41. See, e.g., id.
42. The existence of the First Amendment has generally prevented courts from entertaining the claim that religious classifications deserve heightened scrutiny. See Benjamin Hoorn Barton, Note Religion-Based Peremptory Challenges After Batson v. Kentucky and J.E.B. v. Alabama: An Equal Protection and First Amendment Analysis, 94 MICH. L. REV. 191, 204 (1995) (noting that the failure of courts to grant religious classifications heightened scrutiny "is traceable to the fact that religious discrimination cases have traditionally been decided under the First Amendment"). Nonetheless, religion has sometimes been recognized as a mutable characteristic in the equal protection context. See, e.g., Holmes v. California Army Nat'l Guard, 124 F.3d 1126, 1137 (9th Cir. 1997) (Reinhardt, J., dissenting) (suggesting that members of religious groups may be less oppressed than members of racial groups because they at least have the option of conversion). Similarly, alienage has not been generally recognized as an immutable characteristic. See, e.g., Able v. United States, 968 F. Supp. 850, 863 (E.D.N.Y. 1997) (stating that "alienage is not immutable"), rev'd on other grounds, 155 F.3d 628 (2d Cir. 1998). Compare Frontiero, 411 U.S. at 682 (plurality opinion) (noting that alienage, race, sex, and national origin are suspect classifications), with id. at 686 (noting that race, sex, and national origin are immutable but omitting alienage). Frontiero only listed four (rather than the current five) suspect classifications because the cases finding that legitimacy was a suspect classification had not then been decided. See Clark v. Jeter, 486 U.S. 456 (1988); Lalli v. Lalli, 439 U.S. 259 (1978); Trimble v. Gordon, 430 U.S. 762 (1977). It is true that some courts have stated, without further explanation, that alienage is immutable. See, e.g., Parham v. Hughes, 441 U.S. 347, 351 (1979); Berman v. United States, 572 F. Supp. 1486, 1489 (N.D. Ga. 1983). The absence of analysis in these cases, however, leads me to suspect that these courts are erroneously inferring that a group is immutable if it has received heightened scrutiny. See, e.g., Parham, 441 U.S. at 351 (noting that race, like the four other classifications based on "immutable human attributes," is a suspect classification); Berman, 572 F. Supp. at 1489 (noting that wrongful death plaintiffs are not a suspect class because the classification is not based on "immutable human attributes" such as those defining the five suspect classifications).
43. Although illegitimacy has been characterized as an immutable characteristic, see, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 360 (1978); Bridges v. Phillips Petroleum Co., 733 F.2d 1153, 1155 (5th Cir. 1984), the Supreme Court has correctly noted that it may not always be immutable from the perspective of the parent of the illegitimate child because some states permit parents to legitimate children born out of wedlock through a court order, see Parham, 441 U.S. at 353.
44. On the socially constructed nature of race, see, for example, IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996). On the socially constructed nature of sex, see, for example, JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY (1990). National origin and illegitimacy are very easily seen as socially constructed categories, as the borders that define nations and the relations that define legitimacy are obviously creations of culture rather than of nature. See Anne Reichman Schiff, Frustrated Intentions and Binding Biology: Seeking AID in the Law, 44 DUKE L.J. 524, 530-31 (1994) (noting that biological kinship is neither necessary nor sufficient for a legal determination of legitimacy); Frank H. Wu, The Future of the American Mosaic: A Moderate Proposal for Immigration Reform, 7 STAN. L. & POL'Y REV. 35, 55 n.132 (1996) (noting that national origin is not a biological matter).
45. On the socially constructed nature of race, see, for example, IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996). On the socially constructed nature of sex, see, for example, JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY (1990). National origin and illegitimacy are very easily seen as socially constructed categories, as the borders that define nations and the relations that define legitimacy are obviously creations of culture rather than of nature. See Anne Reichman Schiff, Frustrated Intentions and Binding Biology: Seeking AID in the Law, 44 DUKE L.J. 524, 530-31 (1994) (noting that biological kinship is neither necessary nor sufficient for a legal determination of legitimacy); Frank H. Wu, The Future of the American Mosaic: A Moderate Proposal for Immigration Reform, 7 STAN. L. & POL'Y REV. 35, 55 n.132 (1996) (noting that national origin is not a biological matter).
46. On the socially constructed nature of race, see, for example, IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996). On the socially constructed nature of sex, see, for example, JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY (1990). National origin and illegitimacy are very easily seen as socially constructed categories, as the borders that define nations and the relations that define legitimacy are obviously creations of culture rather than of nature. See Anne Reichman Schiff, Frustrated Intentions and Binding Biology: Seeking AID in the Law, 44 DUKE L.J. 524, 530-31 (1994) (noting that biological kinship is neither necessary nor sufficient for a legal determination of legitimacy); Frank H. Wu, The Future of the American Mosaic: A Moderate Proposal for Immigration Reform, 7 STAN. L. & POL'Y REV. 35, 55 n.132 (1996) (noting that national origin is not a biological matter).
47. On the socially constructed nature of race, see, for example, IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996). On the socially constructed nature of sex, see, for example, JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY (1990). National origin and illegitimacy are very easily seen as socially constructed categories, as the borders that define nations and the relations that define legitimacy are obviously creations of culture rather than of nature. See Anne Reichman Schiff, Frustrated Intentions and Binding Biology: Seeking AID in the Law, 44 DUKE L.J. 524, 530-31 (1994) (noting that biological kinship is neither necessary nor sufficient for a legal determination of legitimacy); Frank H. Wu, The Future of the American Mosaic: A Moderate Proposal for Immigration Reform, 7 STAN. L. & POL'Y REV. 35, 55 n.132 (1996) (noting that national origin is not a biological matter).
48. Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (citing Lyng v. Castillo, 477 U.S. 635, 638 (1986)). For other applications of this test, see cases cited supra note 13.
49. 427 U.S. 495 (1976).
50. Id. at 506.
51. 411 U.S. 677 (1973) (plurality opinion).
52. Id. at 686; see also Craig v. Boren, 429 U.S. 190, 218 (1976) (Rehnquist, J., dissenting) (noting that the Frontiero plurality recognized "that the pervasive and persistent nature of the discrimination experienced by women is in part the result of their ready identifiability").
53. This is not to say that invisible groups are barred from receiving heightened scrutiny, as indicated by the cases of illegitimacy and alienage. That these classifications have attained protected status, however, simply means that invisibility operates as a factor, as opposed to a requirement, in the analysis. And insofar as it operates as a factor, invisibility cuts against a finding that a classification deserves heightened scrutiny. Thus, illegitimacy was accorded heightened scrutiny as a classification in spite of its invisibility. See Mathews, 427 U.S. at 506. The case of alienage is slightly different, given that, as I later argue, alienage was accorded heightened scrutiny before the inauguration of the visibility factor. See infra note 330. Graham v. Richardson, 403 U.S. 365 (1971), which held that alienage was suspect, preceded Frontiero, which I argue introduced the visibility factor, by two years. It is significant, however, that academic commentary contending that the visibility factor dates back to United States v. Carolene Products Co., 304 U.S. 144 (1938), maintains that alienage should not have received heightened scrutiny precisely because of the social inability to identify aliens on sight. See, e.g., Louis Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 COLUM. L. REV. 1093, 1105 n.72 (1982); cf. infra note 322 (considering the pedigree of the visibility factor).
54. See, e.g., Mathews, 427 U.S. at 506.
55. As this definition indicates, corporeal visibility is not exhausted by traits discernible through the sense of sight. I borrow Erving Goffman's disclaimer: Since it is through our sense of sight that the stigma of others most frequently becomes evident, the term visibility is perhaps not too misleading. Actually, the more general term, "perceptibility" would be more accurate, and "evidentness" more accurate still. A stammer, after all, is a very "visible" defect, but in the first instance because of sound, not sight. ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 48 (1963).
56. Social visibility includes "declarative visibility," which arises when a corporeally invisible trait is made visible through speech. For example, an immigrant who self-identifies as such is declaratively visible. Social visibility also includes what Kathryn Abrams has dubbed "political visibility" and "programmatic visibility." Kathryn Abrams, The Supreme Court, Visibility, and the "Politics of Presence," 50 VAND. L. REV. 411, 414-15 (1997). Political visibility "arises when a person claims group membership as a central and constitutive feature of her identity." Id. at 414. An immigrant who articulates her world view as shaped by her immigrant status would thus be politically visible, while an immigrant who feels that she just "happens to be" an immigrant could be described as declaratively visible but politically invisible. Programmatic visibility, in turn, "arises from group members' efforts to connect their group-based identities with a particular political interest or program." Id. An immigrant who militated against the ban on HIV-positive immigrants might be seen as programmatically visible, while one who views her immigrant status as identity-constitutive only in her personal life might be declaratively and politically visible but programmatically invisible. For the purposes of this Article, the subdivisions of social visibility will be less important than the distinction between corporeal and social visibility.
57. It bears note that the relationship between these two kinds of visibility is highly complex. There may well be a correlation between corporeal visibility and the various forms of social visibility: The corporeal invisibility of pedophiles may contribute to their social invisibility, and the corporeal visibility of blacks may contribute to their social visibility. But the correlation, if it exists, is imperfect, for corporeal visibility is neither necessary nor sufficient to ensure social visibility. A corporeally visible trait like eye color can have so little social significance that it is not socially visible. Conversely, a corporeally invisible trait like belonging to the Communist Party might be so fraught with significance as to be highly socially visible.
58. See Mathews, 427 U.S. at 506; Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion); supra notes 37-40 and accompanying text.
59. Frontiero, 411 U.S. at 686 n.17 (plurality opinion).
60. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 445 (1985).
61. GOFFMAN, supra note 43, at 51.
62. See id. at 50-51.
63. Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (quoting Lyng v. Castillo, 477 U.S. 635, 638 (1986)).
64. 837 F.2d 1428 (9th Cir.), amended by 847 F.2d 1329 (9th Cir. 1988), vacated and aff'd on other grounds, 875 F.2d 699 (9th Cir. 1989) (en banc).
65. Id. at 1446 (emphasis added).
66. Id. (emphasis added).
67. Id. (emphases added).
68. No court has noted that visibility is logically nested within immutability. To engage judicial analysis on its own terms, I therefore use the words as the courts do. Thus, when I state that the courts have jettisoned the immutability factor, see infra text accompanying notes 136-137, I do not mean that they have retired visibility as well, but that they have scuttled immutability as they define it.
69. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 685-86 (1973) (plurality opinion).
70. Gays have been denied heightened scrutiny both on the basis of their mutability and invisibility. See, e.g., Equality Found. of Greater Cincinnati v. City of Cincinnati, 128 F.3d 289, 293 (6th Cir. 1997) [Equality Foundation II] (denying gays heightened scrutiny, in part because of their invisibility), on remand from 518 U.S. 1001 (1996), vacating 54 F.3d 261, 167 (6th Cir. 1995) [Equality Foundation I], cert. denied, 66 U.S.L.W. 3749 (U.S. Oct. 13, 1998) (No. 97-1795); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) (denying gays heightened scrutiny, in part because "[h]omosexuality is not an immutable characteristic"). The homeless have also been denied heightened scrutiny on the basis of mutability. See Johnson v. City of Dallas, 860 F. Supp. 344, 357 (N.D. Tex. 1994), rev'd on other grounds, 61 F.3d 442 (5th Cir. 1995). Homelessness is obviously only a rough proxy for class, but I rely on it here because the Supreme Court case denying the poor suspect status did not clearly articulate the basis for its holding. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
71. See infra notes 91-120, 143-221 and accompanying text.
72. See JONATHAN KATZ, GAY AMERICAN HISTORY 129-207 (1976) (documenting case studies).
73. See infra Part VI.
74. The coinage of the term "covering" appears to be Erving Goffman's. See GOFFMAN, supra note 43, at 102-04.
75. See Shahar v. Bowers, 114 F.3d 1097, 1111 n.27 (11th Cir. 1997) (upholding the dismissal of a lesbian attorney and noting that she was dismissed not because of her sexual orientation but because of her participation in a public same-sex commitment ceremony), cert. denied, 118 S. Ct. 693 (1998). Another example of forced covering for gays occurs in the family law context, where gays are permitted to retain visitation rights with their biological children only as long as they do not "flaunt" their homosexuality while in the presence of their children. See, e.g., Pennington v. Pennington, 596 N.E.2d 305 (Ind. Ct. App. 1992) (requiring absence of father's male and allegedly gay friend during periods of visitation); S.E.G. v. R.A.G., 735 S.W.2d 164 (Mo. Ct. App. 1987) (limiting child visitation rights of an openly gay mother); In re Jane B., 380 N.Y.S.2d 848 (Sup. Ct. 1976) (requiring the absence of any homosexual other than the lesbian mother herself during visitation period).
76. See GOFFMAN, supra note 43, at 49.
77. Id.
78. PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 9-10 (1991).
79. Id. at 9.
80. Id. at 10.
81. One reason why converting, passing, and covering are often confused is that they are not only all strategies of assimilation, but strategies that are theoretically understood by analogy to each other. Thus, when examining Williams's rhetoric, one sees that while she is formally speaking of covering, she invokes the language both of conversion and of passing to describe the demand to cover. In the confines of one sentence, the colleague's words are understood through the rhetoric of mutability (conversion) - "I became nonblack for the purpose of inclusion and black for the purpose of exclusion," and that of visibility (passing) - "I felt myself slip in and out of shadow." Id. For an analogous example of a court deploying the language of visibility (passing) while speaking of immutability (conversion), see supra notes 52-55 and accompanying text.
82. See Garcia v. Gloor, 618 F.2d 264, 269-70 (5th Cir. 1980) (holding that English-only employment rules do not violate Title VII's prohibition of national origin discrimination because speakers choose the language they use); see also Christopher David Ruiz Cameron, How the Garcia Cousins Lost Their Accents: Understanding the Language of Title VII Decisions Approving English-Only Rules as the Product of Racial Dualism, Latino Invisibility, and Legal Indeterminacy, 10 LA RAZA L.J. 261, 281-85 (1998) (discussing the use of the immutability factor to disadvantage groups with mutable traits); Halley, Politics of Biology, supra note 14, at 517-18 (describing anti-gay attempts to justify discrimination on the grounds that sexual orientation is chosen and that "waverers" therefore can be legitimately deterred by the state).
83. See Garcia v. Gloor, 618 F.2d 264, 269-70 (5th Cir. 1980) (holding that English-only employment rules do not violate Title VII's prohibition of national origin discrimination because speakers choose the language they use); see also Christopher David Ruiz Cameron, How the Garcia Cousins Lost Their Accents: Understanding the Language of Title VII Decisions Approving English-Only Rules as the Product of Racial Dualism, Latino Invisibility, and Legal Indeterminacy, 10 LA RAZA L.J. 261, 281-85 (1998) (discussing the use of the immutability factor to disadvantage groups with mutable traits); Halley, Politics of Biology, supra note 14, at 517-18 (describing anti-gay attempts to justify discrimination on the grounds that sexual orientation is chosen and that "waverers" therefore can be legitimately deterred by the state).
84. See Equality Foundation II, 128 F.3d at 293 (noting that gays should not get heightened scrutiny, in part because they are not corporeally visible).
85. See Jerome M. Culp, Jr., Black People in White Face: Assimilation, Culture and the Brown Case, 36 WM. & MARY L. REV. 665, 669 (1995).
86. See id. at 676-81; Enid Trucios-Gaynes, The Legacy of Racially Restrictive Immigration Laws and Policies and the Construction of American National Identity, 76 OR. L. REV. 369, 386-87 (1997).
87. See infra notes 356-360 and accompanying text.
88. See Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 740-46 (1985).
89. See id. at 741.
90. See id. at 740-41.
91. See Halley, Politics of Biology, supra note 14, at 507-09.
92. Halley's discussion of this defense and critique restricts itself formally to immutability. It is also applicable to visibility, however, if visibility is correctly understood to be a kind of immutability. See supra note 56 and accompanying text.
93. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972)).
94. See Halley, Politics of Biology, supra note 14, at 507-08 (citing Frontiero, 411 U.S. at 688 (plurality opinion)). Halley rightly notes that the Court's examples are "a little dubious," given that intelligence and physical disability are not definitively immutable traits. Id. at 508. Yet the infelicity of the examples does not detract from the correctness of the Court's statement that society must retain the ability to discriminate on the basis of some immutable traits, such as adult height. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 472 n.24 (1985) (Marshall, J., concurring in the judgment in part and dissenting in part) (noting that immutable traits such as height can be valid bases for government classification).
95. See Halley, Politics of Biology, supra note 14, at 509 (making this point in the context of immutability).
96. Another way of approaching the same insight is to ask, as Laurence Tribe has done, whether racism would be constitutionally unproblematic if blacks could easily alter their race. See Tribe, supra note 15, at 1074 n.52 (noting that "even if race or gender became readily mutable by biomedical means, I would suppose that laws burdening those who chose to remain black or female would properly remain constitutionally suspect"); see also Watkins v. United States Army, 837 F.2d 1428, 1446 (9th Cir.) (citing Tribe for the proposition that "[r]acial discrimination, for example, would not suddenly become constitutional if medical science developed an easy, cheap, and painless method of changing one's skin pigment"), amended by 847 F.2d 1329 (9th Cir. 1988), vacated and aff'd on other grounds, 875 F.2d 699 (9th Cir. 1989) (en banc).
97. Assimilation, which is defined as the act of becoming similar, is understood to have two connotations. The positive connotation views assimilation as "a process which liberates individuals from the binding force of particularistic traditions," thereby inducting them into a community with shared values. Nomi M. Stolzenberg, Un-Covering the Tradition of Jewish "Dissimilation": Frankfurter, Bickel, and Cover on Judicial Review, 3 S. CAL. INTERDISC. L.J. 809, 814 (1994). The negative connotation casts assimilation as "substituting the dominant culture's values for those of the subordinated subgroup, rather than transcending the values and beliefs of any particular culture." Id. at 814-15.
98. Both classical and modern proponents of liberalism share this view. Compare, e.g., THOMAS HOBBES, LEVIATHAN 227-28, 376 (C.B. MacPherson ed., 1985) (1651) (giving an account of how the state requires individuals to give up certain rights in order to protect their abilities to pursue their various notions of the good),
99. with, e.g., JOHN RAWLS, POLITICAL LIBERALISM 133-40 (1996) (noting that the coercive power of the state is the predicate for political liberalism, which holds that multiple notions of the good should be respected).
100. This paradox replicates itself in the Constitution. The most obvious hallmark of the Constitution is its heterodoxy, leading one commentator to maintain that the antitotalitarian principle is a "transcendental doctrine" of the Constitution. Jed Rubenfeld, The Right to Privacy, 102 HARV. L. REV. 737, 805 (1989). And it is true that the explicitly antiassimilationist principles embodied in, for example, the Free Speech, Freedom of Exercise, and Establishment Clauses, are far more prominent than the explicitly assimilationist principles articulated in, for example, the Bill of Attainder and the Titles of Nobility Clauses. But even the most obviously heterodox principles of the Constitution, when closely examined, reveal themselves to be based on a conception of orthodoxy. For instance, in the First Amendment context, the Court has acknowledged that the question is not whether, but how much, assimilation is appropriate. Compare Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940) (upholding a flag salute provision against a First Amendment challenge because it deemed the flag salute to be integral to inculcating a crucial sense of citizenship), with West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (reiterating that certain measures inculcating citizenship are appropriate but overruling Gobitis because flag salutes are not among them).
101. This theory is elegantly set forth in Ackerman, supra note 75, at 719-20.
102. See, e.g., Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 YALE L.J. 1063, 1064-65 (1981) (noting that "process-oriented strategies [are] covertly value-laden"); Tribe, supra note 15, at 1063-64 (noting that a process-based theory of constitutional law actually masks substantive decisionmaking).
103. See Ackerman, supra note 75, at 740-41 (arguing that judicial protection is necessary to protect the participation and bargaining abilities of some minority groups in the modern political process); Daniel A. Farber & Philip P. Frickey, Is Carolene Products Dead? Reflections on Affirmative Action and the Dynamics of Civil Rights Legislation, 79 CAL. L. REV. 686 (1991) (arguing that the political process framework provided by Carolene Products should be retained for use in cases of racial discrimination); Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 VA. L. REV. 747 (1991) (arguing that, although certain forms of process theory have been criticized justly for reliance on substantive judgment, "pure" process theory is sufficiently powerful to achieve the goals of the equal protection guarantee).
104. See Ackerman, supra note 75, at 740-41 (arguing that judicial protection is necessary to protect the participation and bargaining abilities of some minority groups in the modern political process); Daniel A. Farber & Philip P. Frickey, Is Carolene Products Dead? Reflections on Affirmative Action and the Dynamics of Civil Rights Legislation, 79 CAL. L. REV. 686 (1991) (arguing that the political process framework provided by Carolene Products should be retained for use in cases of racial discrimination); Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 VA. L. REV. 747 (1991) (arguing that, although certain forms of process theory have been criticized justly for reliance on substantive judgment, "pure" process theory is sufficiently powerful to achieve the goals of the equal protection guarantee).
105. It also bears note that the analysis below will show that evasive power, standing alone, provides the strongest justification for both the immutability and visibility presumptions. Thus, even if the critic persists in believing that evasive power is irrelevant to this analysis, his disbelief only strengthens my ultimate argument that the presumptions should be retired.
106. Holmes v. California Army Nat'l Guard, 124 F.3d 1126, 1137 (9th Cir. 1997) (Reinhardt, J., dissenting).
107. See Kenneth L. Karst, Paths to Belonging: The Constitution and Cultural Identity, 64 N.C. L. REV. 303, 327 (1986).
108. This may be especially true if the discrimination intends to effectuate that transformation. See infra notes 124-126 and accompanying text.
109. I will later qualify the statement that masking a trait leaves its essence intact, see infra notes 193-197 and accompanying text, but not in a way that damages the relative claim pertinent here - that an individual generally surrenders less of the essence of a trait when she passes than when she converts.
110. The argument about the auto-identification effect tracks John Hart Ely's argument. See ELY, supra note 14, at 160.
111. See, e.g., Batson v. Kentucky, 476 U.S. 79, 138 (1986) (Rehnquist, J., dissenting); United States v. Leslie, 783 F.2d 541, 554 (5th Cir. 1986) (noting that the assumption "that each race . . . may tend to favor its own" does not violate equal protection); Partida v. Castaneda, 384 F. Supp. 79, 91 (S.D. Tex. 1974) ("Here, the Mexican-Americans are a governing majority, and it cannot be presumed they would purposefully and intentionally discriminate against themselves."), rev'd, 524 F.2d 481 (5th Cir. 1975), aff'd, 430 U.S. 482 (1977). In Batson, Justice Rehnquist noted in dissent that: The use of group affiliations, such as . . . race . . . as a 'proxy' for potential juror partiality, based on the assumption or belief that members of one group are more likely to favor defendants who belong to the same group, has long been accepted as a legitimate basis for the State's exercise of peremptory challenges. Batson, 476 U.S. at 138 (Rehnquist, J., dissenting).
112. See, e.g., Martin v. Norfolk S. Ry., 926 F. Supp. 1044, 1049 (N.D. Ala. 1996) (noting that if the theory of harassment is subordination of one sex, "same-sex hostile working environment sexual harassment is not actionable under Title VII"); Quick v. Donaldson Co., 895 F. Supp. 1288, 1296 (S.D. Iowa 1995) ("As a male in a male-dominated environment, Quick cannot successfully complain that he was discriminated against based upon his gender."), rev'd, 90 F.3d 1372 (8th Cir. 1996); Hopkins v. Baltimore Gas & Elec. Co., 871 F. Supp. 822, 833 (D. Md.) (noting that the male defendant "certainly does not despise the entire group, nor does he wish to harm its members, since he is a member himself" (citations and internal quotation marks omitted)), aff'd, 77 F.3d 745 (4th Cir. 1994).
113. See GOFFMAN, supra note 43, at 19-20.
114. See ELY, supra note 14, at 160. Although age seems to be the classic example, it is also a problematic one. As Ely recognizes, it may be something more than mutability alone that makes us empathize with persons of different ages. Specifically, it is not just age's mutability but also its inevitability that engenders empathy - so long as we live long enough, we will at some point in our lives have been the same age as everyone around us. The Supreme Court recognized this point in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam), where it found that age was not a suspect classification because old age "marks a stage that each of us will reach if we live out our normal span." Id. at 313-14. In so saying, the Court was not adducing age's mutability but rather aging's universality as the reason why age-based classifications were relatively unproblematic.
115. See Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133, 136 (1982) (quoting PHILIP MASON, RACE RELATIONS 2 (1970)).
116. See Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133, 136 (1982) (quoting PHILIP MASON, RACE RELATIONS 2 (1970)).
117. See ADELBERT H. JENKINS, THE PSYCHOLOGY OF THE AFRO-AMERICAN: A HUMANISTIC APPROACH 24 (1982) ("Many observers have concluded that there is a considerable amount of 'self-hatred' in the Black community, even among Black children."); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 694 (1995) ("'Black-on-black' violent crime . . . can be attributed to internalized racism, which causes some African-Americans to devalue black lives - either those of others or their own."). As Patricia Falk notes: [A] major mechanism through which racism may affect mental health . . . is to compromise the self-esteem of individuals in the persecuted group. If racism is premised upon the notion of racial superiority, it is not surprising that one sequela is self-contempt on the part of minority-group members. . . . This self-hatred may lead to feelings of despair, depression, hopelessness, and helplessness. Patricia J. Falk, Novel Theories of Criminal Defense Based upon the Toxicity of the Social Environment: Urban Psychosis, Television Intoxication, and Black Rage, 74 N.C. L. REV. 731, 778 (1996).
118. See ADELBERT H. JENKINS, THE PSYCHOLOGY OF THE AFRO-AMERICAN: A HUMANISTIC APPROACH 24 (1982) ("Many observers have concluded that there is a considerable amount of 'self-hatred' in the Black community, even among Black children."); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 694 (1995) ("'Black-on-black' violent crime . . . can be attributed to internalized racism, which causes some African-Americans to devalue black lives - either those of others or their own."). As Patricia Falk notes: [A] major mechanism through which racism may affect mental health . . . is to compromise the self-esteem of individuals in the persecuted group. If racism is premised upon the notion of racial superiority, it is not surprising that one sequela is self-contempt on the part of minority-group members. . . . This self-hatred may lead to feelings of despair, depression, hopelessness, and helplessness. Patricia J. Falk, Novel Theories of Criminal Defense Based upon the Toxicity of the Social Environment: Urban Psychosis, Television Intoxication, and Black Rage, 74 N.C. L. REV. 731, 778 (1996).
119. See ADELBERT H. JENKINS, THE PSYCHOLOGY OF THE AFRO-AMERICAN: A HUMANISTIC APPROACH 24 (1982) ("Many observers have concluded that there is a considerable amount of 'self-hatred' in the Black community, even among Black children."); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 694 (1995) ("'Black-on-black' violent crime . . . can be attributed to internalized racism, which causes some African-Americans to devalue black lives - either those of others or their own."). As Patricia Falk notes: [A] major mechanism through which racism may affect mental health . . . is to compromise the self-esteem of individuals in the persecuted group. If racism is premised upon the notion of racial superiority, it is not surprising that one sequela is self-contempt on the part of minority-group members. . . . This self-hatred may lead to feelings of despair, depression, hopelessness, and helplessness. Patricia J. Falk, Novel Theories of Criminal Defense Based upon the Toxicity of the Social Environment: Urban Psychosis, Television Intoxication, and Black Rage, 74 N.C. L. REV. 731, 778 (1996).
120. See SANDER L. GILMAN, JEWISH SELF-HATRED (1986).
121. See EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET 81, 242-46 (1990) (describing the phenomenon of homophobic homosexuals); Aklilu Dunlap, The Bellows of Dying Elephants: Gay-, Lesbian-, and Bisexual-Protective Hate Crime Statutes After R.A.V. v. City of St. Paul, 12 LAW & INEQ. J. 205, 220 (1993) (noting that gay individuals suffer feelings of "humiliation, isolation, and self hatred" as a result of hate crimes).
122. See EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET 81, 242-46 (1990) (describing the phenomenon of homophobic homosexuals); Aklilu Dunlap, The Bellows of Dying Elephants: Gay-, Lesbian-, and Bisexual-Protective Hate Crime Statutes After R.A.V. v. City of St. Paul, 12 LAW & INEQ. J. 205, 220 (1993) (noting that gay individuals suffer feelings of "humiliation, isolation, and self hatred" as a result of hate crimes).
123. See cases cited supra notes 96-97.
124. Castaneda v. Partida, 430 U.S. 482, 499 (1977).
125. Oncale v. Sundowner Offshore Servs., 118 S. Ct. 998, 1001-02 (1998) (quoting 42 U.S.C. § 2000e(2)(a)(1) (1994)).
126. See Ann E. Freedman, Feminist Legal Method in Action: Challenging Racism, Sexism and Homophobia in Law School, 24 GA. L. REV. 849, 856-57 (1990) (explaining that internalized sexism has influenced her professional relationships with other women, and also noting that people are born with a sense of their own self-worth that needs to be given positive reinforcement in order to develop).
127. See Balkin, supra note 14, at 2333 (citing GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 41-42, 271-86 (1991)).
128. Id.
129. See id. at 2333-34.
130. See LEO BERSANI, HOMOS 27 (1995).
131. Id.
132. Id.
133. See generally SUSAN SONTAG, ILLNESS AS METAPHOR (1978) (noting the multiple ways in which illness is used as a figure for nonmedical conditions).
134. See EDWARD E. JONES ET AL., SOCIAL STIGMA: THE PSYCHOLOGY OF MARKED RELATIONSHIPS 70 (1984) (noting that the terror of being contaminated by a stigma may lead one to perceive the threat of contamination as being greater than it actually is).
135. See Paula A. Treichler, AIDS, Homophobia, and Biomedical Discourse: An Epidemic of Signification, in AIDS: CULTURAL ANALYSIS/CULTURAL ACTIVISM 31, 35-36 (Douglas Crimp ed., 1988). By "AIDSphobia," I mean any irrational fear of the disease, even if that fear is not diagnosed as the psychiatric syndrome of the same name. See Mandana Shahvari, Comment, Afraids: Fear of AIDS as a Cause of Action, 67 TEMP. L. REV. 769, 778 (1994) (describing "AIDS phobia").
136. See Paula A. Treichler, AIDS, Homophobia, and Biomedical Discourse: An Epidemic of Signification, in AIDS: CULTURAL ANALYSIS/CULTURAL ACTIVISM 31, 35-36 (Douglas Crimp ed., 1988). By "AIDSphobia," I mean any irrational fear of the disease, even if that fear is not diagnosed as the psychiatric syndrome of the same name. See Mandana Shahvari, Comment, Afraids: Fear of AIDS as a Cause of Action, 67 TEMP. L. REV. 769, 778 (1994) (describing "AIDS phobia").
137. Indeed, psychologists have noted that the disease paradigm may control even when the stigma is manifestly neither contagious nor a disease. In one study, one-third or more of college student subjects stated that they would not go swimming in a pool used by mental patients and that they would wash their hands after touching a mental patient. See JONES ET AL., supra note 115, at 71.
138. See Leo Bersani, Is the Rectum a Grave?, in AIDS: CULTURAL ANALYSIS/CULTURAL ACTIVISM, supra note 116, at 197, 199-201.
139. Treichler, supra note 116, at 65-67.
140. See, e.g., TIMOTHY F. MURPHY, ETHICS IN AN EPIDEMIC: AIDS, MORALITY, AND CULTURE 173-81 (1994) (describing how biomedical research and treatment priorities are decided).
141. See ALBERT O. HIRSCHMAN, EXIT, VOICE, AND LOYALTY 44-54 (1970).
142. See Ackerman, supra note 75, at 730-31.
143. As I will discuss later, conversion is not the only exit option. Group members may also conceal their defining characteristics in lieu of challenging discrimination against the group. See infra notes 143-158, 222-223 and accompanying text.
144. This distinction has been drawn in the psychology literature: In the case of stigmas for which people cannot be held responsible, the restriction or termination of social relations is likely to be an end itself. Racial discrimination, for example, tends to remove blacks from competition for high-prestige jobs, and institutionalization of the mentally retarded can remove them from the social mainstream altogether. With stigmas over which persons have some control, however, the restriction or termination of social relations may not be the only end. Suppose that religious heretics are banished from a country. Such a reaction has the immediate consequence of ridding the country of persons with deviant religious beliefs. At the same time, it can be a means of discouraging other persons from adopting similar beliefs. Mark C. Stafford & Richard R. Scott, Stigma, Deviance, and Social Control, in THE DILEMMA OF DIFFERENCE: A MULTIDISCIPLINARY VIEW OF STIGMA 77, 88 (Stephen C. Ainlay et al. eds., 1986).
145. See, e.g., Alan E. Brownstein, Harmonizing the Heavenly and Earthly Spheres: The Fragmentation and Synthesis of Religion, Equality, and Speech in the Constitution, 51 OHIO ST. L.J. 89, 110-11 (1990) (noting that religious beliefs require protection from coerced conversion because they are mutable).
146. See, e.g., Charles J. McClain, Tortuous Path, Elusive Goal: The Asian Quest for American Citizenship, 2 ASIAN L.J. 33, 34-36 (1995) (describing the history of bars on Asian naturalization).
147. Because we are not speaking of "strict" immutability, I frame the futility of forcing immutable groups to change as a perception rather than as a reality.
148. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972)).
149. The reverse is also true - the morality of a group identity, once established, moots the question of whether the group identity is immutable. "[T]he very question of 'how we got that way' would in many quarters not be asked if it were not assumed that we ended up the wrong way . . . ." BERSANI, supra note 111, at 57.
150. See, e.g., EDWIN J. DELATTRE, CHARACTER AND COPS: ETHICS IN POLICING 128 (2d ed. 1994) ("Because drug use adversely affects families and the broader society, opponents say, government has a rightful interest in prohibition."); James Q. Wilson, Drugs and Crime, in DRUGS AND CRIME 521, 523 (Michael Tonry & James Q. Wilson eds., 1990) ("The moral reason for attempting to discourage drug use is that the heavy consumption of certain drugs is destructive of human character. . . . The dignity, autonomy, and productivity of many users, already impaired by other problems, is destroyed.").
151. See, e.g., EDWIN J. DELATTRE, CHARACTER AND COPS: ETHICS IN POLICING 128 (2d ed. 1994) ("Because drug use adversely affects families and the broader society, opponents say, government has a rightful interest in prohibition."); James Q. Wilson, Drugs and Crime, in DRUGS AND CRIME 521, 523 (Michael Tonry & James Q. Wilson eds., 1990) ("The moral reason for attempting to discourage drug use is that the heavy consumption of certain drugs is destructive of human character. . . . The dignity, autonomy, and productivity of many users, already impaired by other problems, is destroyed.").
152. See Robinson v. California, 370 U.S. 660, 666-67 (1962).
153. ELY, supra note 14, at 150.
154. See Rochelle Cooper Dreyfuss & Dorothy Nelkin, The Jurisprudence of Genetics, 45 VAND. L. REV. 313, 329-32 (1992).
155. Id. at 320.
156. The inverse correlation between evasive power and transformative power that obtains in the context of the manipulation effect is complicated by the fact that the manipulation effect gives transformative gains to groups that are perceived to have no evasive power. One could thus imagine a scenario in which a group was vulnerable to attempted manipulation because it was perceived to have evasive power, even if it effectively did not. The fact that religion is perceived by many to be a mutable characteristic, for example, has left religious groups vulnerable to the manipulation effect. See Brownstein, supra note 125, at 110-11. Many individuals, however, may not experience religion to be a mutable attribute. See Lori Kraft-Jacobs, What Is "Religion" in Religion-Based Peremptory Challenges?, 65 U. CIN. L. REV. 1291, 1322 n.226 (1997) (noting that while religious affiliation "is certainly not immutable in the literal way in which race is immutable, [it] is, for most people, a matter of birth and not a matter of choice").
157. See cases cited supra notes 15-18.
158. See sources cited supra note 14.
159. See supra note 56 and accompanying text.
160. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion).
161. Mathews v. Lucas, 427 U.S. 495, 506 (1976).
162. See Sunstein, supra note 12, at 2443.
163. Id. at 2411. Given that I will ultimately disagree with Sunstein's argument, it is only fair to repeat his caveats to the "anticaste principle." First, Sunstein proffers this principle as one of many possible equality principles, and not the only one required by the Constitution. See id. at 2411-12. Second, Sunstein is not explicitly attempting to justify the bias toward visibility in the equal protection context. See id. at 2432-33. These caveats demonstrate that Sunstein did not formulate his principle with my context in mind. Sunstein's analysis, however, emphasizes visibility's disempowering aspects without considering the debilitating effects of invisibility. As such, his analysis provides a rationale for the visibility factor.
164. 54 F.3d 261 (6th Cir. 1995) [Equality Foundation I], vacated 518 U.S. 1001 (1996), on remand 128 F.3d 289 (6th Cir. 1997) [Equality Foundation II], cert. denied, 66 U.S.L. W. 3749 (U.S. Oct. 13, 1998) (No. 97-1795). In discussing the Sixth Circuit's view of invisibility in this case, I quote from its first opinion, Equality Foundation I. This may seem problematic given that this opinion has been vacated. The vacatur, however, had nothing to do with the court's argument that gays should be denied heightened scrutiny in part because of their invisibility. Moreover, on remand, the Sixth Circuit resurrected that argument in Equality Foundation II, 128 F.3d at 293 (quoting Equality Foundation I, 54 F.3d at 267) (noting that a suspect class cannot be defined "by subjective and unapparent characteristics such as innate desires, drives and thoughts"). The argument that gays should not receive heightened scrutiny in part because of their invisibility is thus still good law in the Sixth Circuit. The reason that I quote from Equality Foundation I as opposed to Equality Foundation II is that the analysis of the former was abbreviated in the latter.
165. Equality Foundation I, 54 F.3d at 267 (quoting Bowen v. Gilliard, 483 U.S. 587, 602 (1987)).
166. Id.
167. Id. As the Seventh Circuit recently noted, the Equality Foundation I court's "analysis appears to conflate the requirement that discrimination be based on membership in a definable class to trigger equal protection analysis with the requirement that the class have 'obvious, immutable, or distinguishing characteristics' to trigger heightened or strict scrutiny." Nabozny v. Podlesny, 92 F.3d 446, 457 n.10 (7th Cir. 1996) (citations omitted). I ignore that doctrinal confusion here, as it does not bear on the merits of the court's argument about visibility.
168. As bizarre as it may seem, this conception of invisibility as a grant of unfettered power to its possessor has an ancient pedigree. In Book II of The Republic, Plato recounts the story of Gyges the Lydian, a shepherd who finds a ring that can make him invisible at will. See 1 PLATO, THE REPUBLIC 117-19 (T.E. Page ed. & Paul Shorey trans., G.P. Putnam's Sons 1937). Gyges uses the ring to seduce the wife of the king, kill the king, and ultimately to possess the kingdom. See id. According to Plato, the invisible man ultimately stands outside the law, because he can "with impunity take what he wishes even from the marketplace, and enter into houses and lie with whom he pleases, and slay and loose from bonds whomsoever he would, and in all other things conduct himself among mankind as the equal of a god." Id. It would fall to later commentators to interrogate the assumption that invisibility imbues its bearer with absolute power. Thus, H.G. Wells's invisible man begins with this assumption, only to be disabused of it over the course of the novel. Compare H.G. WELLS, THE INVISIBLE MAN 84 (Macdonald Daly ed., 1995) (1897) ("I beheld, unclouded by doubt, a magnificent vision of all that invisibility might mean to a man - the mystery, the power, the freedom. Drawbacks saw I none."), with id. at 111 ("The more I thought it over . . . the more I realised what a helpless absurdity an Invisible Man was . . . ."). Critical commentary has argued that Wells's novel was a conscious revision of the Gyges parable. See Macdonald Daly, Introduction to WELLS, supra, at xxix, xxxvii.
169. As bizarre as it may seem, this conception of invisibility as a grant of unfettered power to its possessor has an ancient pedigree. In Book II of The Republic, Plato recounts the story of Gyges the Lydian, a shepherd who finds a ring that can make him invisible at will. See 1 PLATO, THE REPUBLIC 117-19 (T.E. Page ed. & Paul Shorey trans., G.P. Putnam's Sons 1937). Gyges uses the ring to seduce the wife of the king, kill the king, and ultimately to possess the kingdom. See id. According to Plato, the invisible man ultimately stands outside the law, because he can "with impunity take what he wishes even from the marketplace, and enter into houses and lie with whom he pleases, and slay and loose from bonds whomsoever he would, and in all other things conduct himself among mankind as the equal of a god." Id. It would fall to later commentators to interrogate the assumption that invisibility imbues its bearer with absolute power. Thus, H.G. Wells's invisible man begins with this assumption, only to be disabused of it over the course of the novel. Compare H.G. WELLS, THE INVISIBLE MAN 84 (Macdonald Daly ed., 1995) (1897) ("I beheld, unclouded by doubt, a magnificent vision of all that invisibility might mean to a man - the mystery, the power, the freedom. Drawbacks saw I none."), with id. at 111 ("The more I thought it over . . . the more I realised what a helpless absurdity an Invisible Man was . . . ."). Critical commentary has argued that Wells's novel was a conscious revision of the Gyges parable. See Macdonald Daly, Introduction to WELLS, supra, at xxix, xxxvii.
170. As bizarre as it may seem, this conception of invisibility as a grant of unfettered power to its possessor has an ancient pedigree. In Book II of The Republic, Plato recounts the story of Gyges the Lydian, a shepherd who finds a ring that can make him invisible at will. See 1 PLATO, THE REPUBLIC 117-19 (T.E. Page ed. & Paul Shorey trans., G.P. Putnam's Sons 1937). Gyges uses the ring to seduce the wife of the king, kill the king, and ultimately to possess the kingdom. See id. According to Plato, the invisible man ultimately stands outside the law, because he can "with impunity take what he wishes even from the marketplace, and enter into houses and lie with whom he pleases, and slay and loose from bonds whomsoever he would, and in all other things conduct himself among mankind as the equal of a god." Id. It would fall to later commentators to interrogate the assumption that invisibility imbues its bearer with absolute power. Thus, H.G. Wells's invisible man begins with this assumption, only to be disabused of it over the course of the novel. Compare H.G. WELLS, THE INVISIBLE MAN 84 (Macdonald Daly ed., 1995) (1897) ("I beheld, unclouded by doubt, a magnificent vision of all that invisibility might mean to a man - the mystery, the power, the freedom. Drawbacks saw I none."), with id. at 111 ("The more I thought it over . . . the more I realised what a helpless absurdity an Invisible Man was . . . ."). Critical commentary has argued that Wells's novel was a conscious revision of the Gyges parable. See Macdonald Daly, Introduction to WELLS, supra, at xxix, xxxvii.
171. Equality Foundation I, 54 F.3d at 267.
172. Ackerman, supra note 75, at 729. Obviously, there are "passing exceptions" to this rule - some blacks and some women are capable of passing as whites or men, respectively. See, e.g., Watkins v. United States Army, 837 F.2d 1428, 1446 (9th Cir.), amended by 847 F.2d 1329 (9th Cir. 1988), vacated and aff'd on other grounds, 875 F.2d 699 (9th Cir. 1989) (en banc).
173. There are exceptions to this rule as well. It is hard for groups marked by invisible characteristics to be totally "out" about their identities. This is because social norms make it difficult to communicate invisible traits to people in a continuous and unambiguous way. For example, even a lesbian who seeks to be "out" in every context will have a hard time making her homosexuality as apparent as it would be if it were corporeally visible. Verbal speech is simply not capable of disseminating information in the same way as a visible trait - social norms make it difficult to state one's homosexuality in every encounter with "a new boss, social worker, loan officer, landlord, doctor." SEDGWICK, supra note 103, at 68. Thus, gays may instead rely upon physically visible - albeit noncorporeal - traits, such as an earring in the right ear or a pink triangle button. Although continuously performative in a way that speech is not, these accessories suffer from ambiguity. This is in part because audiences may not have the interpretive capacity to decode them. Moreover, even if the audience possesses that interpretive faculty, the fact that anyone may don these signifiers overdetermines them. A pink triangle button, for example, may mean that the wearer is pro-gay rather than gay.
174. Equality Foundation I, 54 F.3d at 267.
175. Sunstein, supra note 12, at 2432.
176. BERSANI, supra note 111, at 11.
177. The most obvious instance of this is that a black person will have a harder time making it past a racist lynch mob than a homosexual will making it past a homophobic lynch mob. But discretion will also be important to combat the subtle and daily forms of discrimination that take their toll over the long term. For example, one study comparing the adjustment of children with scars from facial burns with the adjustment of those with congenital heart disease found that the latter were better adjusted, despite the fact that their condition was much more life-threatening. See JONES ET AL., supra note 115, at 35 (citing Richard T. Goldberg, Adjustment of Children with Invisible and Visible Handicaps: Congenital Heart Disease and Facial Burns, 21 J. COUNSELING PSYCHOL. 428 (1974)).
178. GOFFMAN, supra note 43, at 1.
179. See MICHEL FOUCAULT, DISCIPLINE AND PUNISH 34 (Alan Sheridan trans., 1977).
180. See Neal Kumar Katyal, Deterrence's Difficulty, 95 MICH. L. REV. 2385, 2456 n.237 (1997) ("Physical torture of course is not the only means of marking people out [to reveal their stigmatized identity] . . . . The 'Scarlet Letter' is a less physically invasive version of the impulse, which, unlike torture, has broad literal and figurative appeal today (for example, Megan's Law).").
181. See Goldschmitt v. State, 490 So. 2d 123, 124 (Fla. Dist. Ct. App. 1986) (per curiam) (DUI case); State v. Bateman, 771 P.2d 314, 315 (Or. Ct. App. 1989) (en banc) (sex offender case). For discussions of these cases, see, for example, Rosalind Kelley, Sentenced To Wear the Scarlet Letter: Judicial Innovations in Sentencing - Are They Constitutional?, 93 DICK. L. REV. 759, 759 (1989). For normative discussions of modern shame sanctions, compare David M. Boyers, Emotion over Reason: California's New Community Notification and Chemical Castration Laws Feel Good, but Fail "Sensible" Scrutiny, 28 PAC. L.J. 740, 750 (1997), and Toni Massaro, Shame, Culture and American Criminal Law, 89 MICH. L. REV. 1880, 1881-83 (1991), which argue against shame sanctions, with Kelley, supra, which argues for shame sanctions.
182. See Goldschmitt v. State, 490 So. 2d 123, 124 (Fla. Dist. Ct. App. 1986) (per curiam) (DUI case); State v. Bateman, 771 P.2d 314, 315 (Or. Ct. App. 1989) (en banc) (sex offender case). For discussions of these cases, see, for example, Rosalind Kelley, Sentenced To Wear the Scarlet Letter: Judicial Innovations in Sentencing - Are They Constitutional?, 93 DICK. L. REV. 759, 759 (1989). For normative discussions of modern shame sanctions, compare David M. Boyers, Emotion over Reason: California's New Community Notification and Chemical Castration Laws Feel Good, but Fail "Sensible" Scrutiny, 28 PAC. L.J. 740, 750 (1997), and Toni Massaro, Shame, Culture and American Criminal Law, 89 MICH. L. REV. 1880, 1881-83 (1991), which argue against shame sanctions, with Kelley, supra, which argues for shame sanctions.
183. See Goldschmitt v. State, 490 So. 2d 123, 124 (Fla. Dist. Ct. App. 1986) (per curiam) (DUI case); State v. Bateman, 771 P.2d 314, 315 (Or. Ct. App. 1989) (en banc) (sex offender case). For discussions of these cases, see, for example, Rosalind Kelley, Sentenced To Wear the Scarlet Letter: Judicial Innovations in Sentencing - Are They Constitutional?, 93 DICK. L. REV. 759, 759 (1989). For normative discussions of modern shame sanctions, compare David M. Boyers, Emotion over Reason: California's New Community Notification and Chemical Castration Laws Feel Good, but Fail "Sensible" Scrutiny, 28 PAC. L.J. 740, 750 (1997), and Toni Massaro, Shame, Culture and American Criminal Law, 89 MICH. L. REV. 1880, 1881-83 (1991), which argue against shame sanctions, with Kelley, supra, which argues for shame sanctions.
184. Hans Jonas, The Nobility of Sight: A Study in the Phenomenology of the Senses, 14 PHIL. & PHENOMENOLOGICAL RES. 507 (1954).
185. Id. at 507.
186. See id. at 507-08.
187. See id. at 517-18.
188. Id. at 515.
189. Cf. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (responding famously to the problem of defining pornography by stating, "I know it when I see it.").
190. See Jonas, supra note 159, at 516.
191. See id. at 515-16.
192. See Carol M. Rose, Seeing Property, in PROPERTY AND PERSUASION: ESSAYS ON THE HISTORY, THEORY, AND RHETORIC OF OWNERSHIP 267, 270-71 (1994).
193. Elaine K. Ginsberg, The Politics of Passing, PASSING AND THE FICTIONS OF IDENTITY 1, 4 (Elaine K. Ginsberg ed., 1996) (quoting Amy Robinson, It Takes One To Know One: Passing and Communities of Common Interest, 20 CRITICAL INQUIRY 715, 716 (1994)).
194. Elaine K. Ginsberg, The Politics of Passing, PASSING AND THE FICTIONS OF IDENTITY 1, 4 (Elaine K. Ginsberg ed., 1996) (quoting Amy Robinson, It Takes One To Know One: Passing and Communities of Common Interest, 20 CRITICAL INQUIRY 715, 716 (1994)).
195. Carol Rose has considered the role that vision's virtues and vices play in the context of property theory. Rose notes that "property's visibility . . . is especially attuned to letting people speak to each other, over time, about their relation to place" because "one can read the messages of successive generations through the way that property looks." Rose, supra note 167, at 268. Rose goes on, however, to acknowledge the power of the scholarly "attack on vision as an objectifying, static model for knowledge - an attack that has disturbing implications for the notion of property as a persuasive enterprise, since persuasion is necessarily intersubjective and dynamic." Id.
196. Sunstein, supra note 12, at 2416.
197. Id. at 2432.
198. Positive interpretations of the blindness of Justice are that she is blindfolded: (1) to shut out "'the misleading evidence of the senses,'" Dennis E. Curtis & Judith Resnik, Images of Justice, 96 YALE L.J. 1727, 1755 (1987) (quoting CESARE RIPA, BAROQUE AND ROCOCO PICTORIAL IMAGERY 120 (Edward A. Maser ed., 1971)); (2) to show that Justice stands apart "from the cares, pleasures, and complexities of humanity," id. at 1756; (3) to shield Justice from "fear or favor," by precluding her from seeing the "signals a sovereign might send on how to decide a case" and "the power of the litigants or witnesses who might seek to intimidate her," id. at 1757-58; or (4) to underscore that "insight and wisdom were not dependent upon what was perceived," id. at 1758.
199. Positive interpretations of the blindness of Justice are that she is blindfolded: (1) to shut out "'the misleading evidence of the senses,'" Dennis E. Curtis & Judith Resnik, Images of Justice, 96 YALE L.J. 1727, 1755 (1987) (quoting CESARE RIPA, BAROQUE AND ROCOCO PICTORIAL IMAGERY 120 (Edward A. Maser ed., 1971)); (2) to show that Justice stands apart "from the cares, pleasures, and complexities of humanity," id. at 1756; (3) to shield Justice from "fear or favor," by precluding her from seeing the "signals a sovereign might send on how to decide a case" and "the power of the litigants or witnesses who might seek to intimidate her," id. at 1757-58; or (4) to underscore that "insight and wisdom were not dependent upon what was perceived," id. at 1758.
200. See FOUCAULT, supra note 156, at 200.
201. See id.
202. Id. at 201.
203. Id.
204. As Foucault notes, the Panopticon "must be understood as a generalizable model of functioning; a way of defining power relations in terms of the everyday life of men." Id. at 205.
205. Barbara J. Flagg, "Was Blind, But Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 975 (1993).
206. Id.
207. The lines between these two harms will not always be clear. See infra notes 193-197 and accompanying text.
208. See GOFFMAN, supra note 43, at 87-88.
209. 392 U.S. 514 (1968).
210. Id. at 527.
211. See, e.g., Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (implying in the equal protection context that invisibility is empowering without mentioning this disempowering aspect of it); Mathews v. Lucas, 427 U.S. 495, 506 (1976) (same); Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion) (same).
212. See GOFFMAN, supra note 43, at 89.
213. See id. at 88.
214. See id. at 89.
215. Joanne DiPlacido, Minority Stress Among Lesbians, Gay Men, and Bisexuals, in STIGMA AND SEXUAL ORIENTATION 138, 148-49 (Gregory M. Harek ed., 1998) (collecting studies).
216. See Ginsberg, supra note 168, at 3 (noting that passing always has the metaphorical implication of trespassing a boundary).
217. GOFFMAN, supra note 43, at 95.
218. JONES ET AL., supra note 115, at 35.
219. Edward Stein elucidates the difference between essentialism and constructionism, again in the context of sexual orientation, as follows: Essentialists hold that a person's sexual orientation is a culture-independent, objective and intrinsic property while social constructionists think it is culture-dependent, relational and, perhaps, not objective. . . . Essentialists think that being a heterosexual or homosexual is like having a certain blood type or being a person taller than six feet. The essentialist would have no problem saying that there were heterosexuals and homosexuals in Ancient Greece; it is just a matter of whether or not a person has the relevant properties (such as a certain gene, hormone, psychological condition, etc. or some combination of these). Even though people in past cultures may have had no idea what constitutes a gene, a hormone, an Oedipal complex or whatever the relevant properties are, they either did or did not have such properties, and thus the essentialist would claim that they were thereby either heterosexual or homosexual (or whatever the appropriate categories of sexual orientation are). In contrast, while social constructionists agree that people in all cultures engaged in sexual acts, they think that only in some cultures (e.g., our culture) are there people who have sexual orientations. Edward Stein, Conclusion: The Essentials of Constructionism and the Construction of Essentialism, in FORMS OF DESIRE: SEXUAL ORIENTATION AND THE SOCIAL CONSTRUCTIONIST CONTROVERSY 325-26 (Edward Stein ed., 1990) (citations omitted).
220. Halley, Politics of the Closet, supra note 14, at 934 (citations omitted).
221. See Watkins v. United States Army, 837 F.2d 1428 (9th Cir.), amended by 847 F.2d 1329 (9th Cir. 1988), vacated and aff'd on other grounds, 875 F.2d 699 (9th Cir. 1989) (en banc).
222. See supra notes 52-55 and accompanying text.
223. See Watkins, 837 F.2d at 1446.
224. Halley, Politics of the Closet, supra note 14, at 934.
225. See supra notes 159-172 and accompanying text.
226. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 316 (1986) (Stevens, J., dissenting) (internal citations omitte).
227. See, e.g., id. at 286 ("[A]lthough its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently 'compelling,' at least in the context of higher education, to support the use of racial considerations in furthering that interest.") (O'Connor, J., concurring in part and concurring in judgment); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311-12, 320 (1978) (recognizing diversity in education as a compelling state interest, but holding that the racial classification policy at issue was not narrowly tailored to serve that interest).
228. Wygant, 476 U.S. at 316 (Stevens, J., dissenting).
229. See infra notes 220-221 and accompanying text.
230. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343 (1995); see also American Constitutional Law Found. v. Meyer, 120 F.3d 1092, 1102 (10th Cir. 1997) (addressing the Supreme Court's protection of anonymous political expression); FEC v. Hall-Tyner Election Campaign Comm., 678 F.2d 416, 417 (2d Cir. 1982) (noting that "[a]nonymity has long been essential to uninhibited political activity in a democratic society").
231. See McIntyre, 514 U.S. at 343; Meyer, 120 F.3d at 1102; Hall-Tyner, 678 F.2d at 417; see also Universal Declaration of Human Rights, Dec. 10, 1948, art. 21.3 (declaring the guarantee of secret ballot or its equivalent to be a basic human right).
232. See, e.g., Bates v. City of Little Rock, 361 U.S. 516 (1960) (holding that the tax interests alleged by the city were insufficiently compelling to require the disclosure of membership); NAACP v. Alabama, 357 U.S. 449 (1958) (reversing a civil contempt order compelling the NAACP to disclose its membership); Adolph Coors Co. v. Wallace, 570 F. Supp. 202 (N.D. Cal. 1983) (denying a discovery order that would have required a gay rights organization to reveal its members); Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark. 1968) (enjoining a prosecuting attorney from using the subpoena power to force the disclosure of names of contributors to the Republican Party).
233. See, e.g., NLRB v. Groendyke Transp., 372 F.2d 137, 142 (10th Cir. 1967) (upholding the use of voting by mail as satisfying the requirement of secret ballot, despite the fact that voting by mail does not assure the same degree of ballot secrecy as that provided by use of voting booths).
234. See, e.g., Communist Party of the United States v. Subversive Activities Control Bd., 367 U.S. 1 (1961) (requiring the Communist Party to disclose, inter alia, its membership lists to the Subversive Activities Control Board); New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 (1928) (upholding a statute requiring organizations with oath-bound membership criteria, such as the Ku Klux Klan, to provide membership lists to the state); see also Barenblatt v. United States, 360 U.S. 109 (1959) (upholding defendant's conviction for refusing to answer congressional inquiries into whether he was or had ever been a member of the Communist Party).
235. See SEDGWICK, supra note 103, at 74-78.
236. See id. at 74-75.
237. 478 U.S. 186 (1986).
238. See JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 521-22 (1994).
239. See id. at 524.
240. See SEDGWICK, supra note 103, at 77.
241. See Jane S. Schacter, The Gay Civil Rights Debate in the States: Decoding the Discourse of Equivalents, 29 HARV. C.R.-C.L. L. REV. 283, 313 (1994).
242. See SEDGWICK, supra note 103, at 78-79.
243. Id. at 78; see also id. at 78-82 (noting seven factors that could prevent the clerk's disclosure from leading to a judicial change of heart).
244. See Jennifer Crocker & Neil Lutsky, Stigma and the Dynamics of Social Cognition, in THE DILEMMA OF DIFFERENCE: A MULTIDISCIPLINARY VIEW OF STIGMA, supra note 124, at 95, 117.
245. Thus, at least three barriers stood between the clerk's coming out and Justice Powell's taking a pro-gay position in Bowers. First, Justice Powell would have had to interpret in the clerk's favor the cognitive dissonance triggered by the revelation, using his positive impression of the clerk to discredit his negative impressions of homosexuals rather than vice versa. Second, even if he had done this, he would then have had to interpret the clerk as representing the class rather than as deviating from it. And finally, even if the clerk had persuaded him to reconsider his view of homosexuality, Justice Powell would have had to be persuaded that this changed view made a difference to the outcome of the case. What the clerk actually did say to Powell was that "the right to love the person of my choice . . . would be far more important to me than the right to vote in elections." JEFFRIES, supra note 211, at 522. Powell's response was "[T]hat may be . . . but that doesn't mean it's in the Constitution." Id. 219. See ELY, supra note 14, at 161.
246. See JONES ET AL., supra note 115, at 71.
247. See Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 COLUM. L. REV. 1753, 1807-08 (1996).
248. See supra note 180 and accompanying text.
249. See Yoshino, supra note 221, at 1801-02.
250. It is true that the closeted individual must ultimately come out to claim the benefits that accrue to the group. In the meantime, however, such an individual can free ride on the political advances made by his out peers.
251. See, e.g., Ronald K. Chen, Constitutional Challenges to Megan's Law: A Year's Retrospective, 6 B.U. PUB. INT. L.J. 57 (1996) (discussing the background of Megan's Law, court challenges to it, and similar legislation); Robert J. Martin, Pursuing Public Protection Through Mandatory Community Notification of Convicted Sex Offenders: The Trials and Tribulations of Megan's Laws, 6 B.U. PUB. INT. L.J. 29 (1996) (same).
252. See, e.g., Ronald K. Chen, Constitutional Challenges to Megan's Law: A Year's Retrospective, 6 B.U. PUB. INT. L.J. 57 (1996) (discussing the background of Megan's Law, court challenges to it, and similar legislation); Robert J. Martin, Pursuing Public Protection Through Mandatory Community Notification of Convicted Sex Offenders: The Trials and Tribulations of Megan's Laws, 6 B.U. PUB. INT. L.J. 29 (1996) (same).
253. See infra Part VI.
254. See JONES ET AL., supra note 115, at 27-35.
255. See id. at 35-36.
256. See Peter Nixen, The Gay Blade Unearthed: Unmasking the Morality of Military Manhood in the 1990s, An Examination of the U.S. Military Ban on Gays, 62 UMKC L. REV. 714, 748-50 (1994) (noting the "catch-22" situation created by prohibiting homosexuals from making their sexual orientation visible and then refusing to grant heightened scrutiny to review the military ban because sexual orientation does not appear to be immutable, precisely because it can be hidden).
257. My example concerns an invisible group rather than a mutable one because the visibility factor has not been as aggressively challenged as the immutability factor. See supra notes 136-142 and accompanying text.
258. See NATIONAL DEFENSE RESEARCH INST., RAND CORP., SEXUAL ORIENTATION AND U.S. MILITARY PERSONNEL POLICY: OPTIONS AND ASSESSMENT 3 (1993) [hereinafter RAND].
259. Enlisted Administrative Separations: Standards and Procedures, 32 C.F.R. pt. 41 app. A (1997).
260. See Janet E. Halley, The Status/Conduct Distinction in the 1993 Revisions to Military Anti-Gay Policy: A Legal Archaeology, 3 GAY L.Q. 159, 165 (1996).
261. See id. at 166.
262. See id. at 165.
263. 10 U.S.C. § 654 (b)(1) (1994).
264. Id. § 654(b)(2).
265. Id. § 654(b)(3).
266. Dep't of Defense Directive No. 1304.26, encl. 1, § B(8)(a).
267. See Able v. United States, 155 F.3d 628, 631 (2d Cir. 1998); Phillips v. Perry, 106 F.3d 1420, 1424 (9th Cir. 1997); Richenberg v. Perry, 97 F.3d 256, 260 (8th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 927 (4th Cir. 1996).
268. See Able, 155 F.3d at 636; Phillips, 106 F.3d at 1429; Richenberg, 97 F.3d at 264; Thomasson, 80 F.3d at 934.
269. Able, 155 F.3d at 632 (quoting Goldman v. Weinberg, 475 U.S. 503, 508 (1986) (quoting Rostker v. Goldberg, 453 U.S. 57, 70 (1981))); Phillips, 106 F.3d at 1425 (same); Richenberg, 97 F.3d at 261 (same); Thomasson, 80 F.3d at 925 (same).
270. See Heller v. Doe, 509 U.S. 312, 319 (1993) (noting that a classification subjected to rational basis review "is accorded a strong presumption of validity").
271. See Korematsu v. United States, 323 U.S. 214, 216, 223-24 (1944) (according race "the most rigid scrutiny" but upholding Japanese-American internment legislation in a military context).
272. Again, my treatment of the military deference objection is abridged because it does not directly affect the validity of my case study, but only the validity of one end to which my case study might be put. The curtailed nature of this treatment is manifest not only in the synoptic way my points are made, but also in my bracketing of the issue of whether military deference is legitimate in the first place. I do no more than mention that the literature against military deference in its current form is robust. See, e.g., Kirstin S. Dodge, Countenancing Corruption: A Civic Republican Case Against Judicial Deference to the Military, 5 YALE J.L. & FEMINISM 1, 17-38, 44 (1992) (noting that "judicial deference to the military ignores the wisdom and cautions of the nation's founders and the civic-republican ideals that influenced them, and undermines the nation's ability to maintain and strengthen democratic self-government in our modern, heterogeneous social and political culture"); Kenneth L. Karst, The Pursuit of Manhood and the Desegregation of the Armed Forces, 38 UCLA L. REV. 499, 563-81 (1991) (critiquing the three rationales for judicial deference in military affairs: "deference in an emergency, deference based on the special needs of a 'separate community,' and deference based on the judiciary's relative incompetence to understand military matters"); Military Ban on Yarmulkes, 100 HARV. L. REV. 163, 170-71 (1986) (arguing, in the context of infringements on religious rights, against the status quo in which the military deference is a "mechanical sanction of military authority" and suggesting that deference should still require the military to adduce a robust rationale for its actions); John Nelson Ohlweiler, The Principle of Deference: Facial Constitutional Challenges to Military Regulations, 10 J.L. & POL'Y 147, 175-81 (1993) (arguing that strict military deference need not apply when facial constitutional challenges are concerned, because these are less likely to threaten military effectiveness than individual personnel decisions).
273. Again, my treatment of the military deference objection is abridged because it does not directly affect the validity of my case study, but only the validity of one end to which my case study might be put. The curtailed nature of this treatment is manifest not only in the synoptic way my points are made, but also in my bracketing of the issue of whether military deference is legitimate in the first place. I do no more than mention that the literature against military deference in its current form is robust. See, e.g., Kirstin S. Dodge, Countenancing Corruption: A Civic Republican Case Against Judicial Deference to the Military, 5 YALE J.L. & FEMINISM 1, 17-38, 44 (1992) (noting that "judicial deference to the military ignores the wisdom and cautions of the nation's founders and the civic-republican ideals that influenced them, and undermines the nation's ability to maintain and strengthen democratic self-government in our modern, heterogeneous social and political culture"); Kenneth L. Karst, The Pursuit of Manhood and the Desegregation of the Armed Forces, 38 UCLA L. REV. 499, 563-81 (1991) (critiquing the three rationales for judicial deference in military affairs: "deference in an emergency, deference based on the special needs of a 'separate community,' and deference based on the judiciary's relative incompetence to understand military matters"); Military Ban on Yarmulkes, 100 HARV. L. REV. 163, 170-71 (1986) (arguing, in the context of infringements on religious rights, against the status quo in which the military deference is a "mechanical sanction of military authority" and suggesting that deference should still require the military to adduce a robust rationale for its actions); John Nelson Ohlweiler, The Principle of Deference: Facial Constitutional Challenges to Military Regulations, 10 J.L. & POL'Y 147, 175-81 (1993) (arguing that strict military deference need not apply when facial constitutional challenges are concerned, because these are less likely to threaten military effectiveness than individual personnel decisions).
274. Again, my treatment of the military deference objection is abridged because it does not directly affect the validity of my case study, but only the validity of one end to which my case study might be put. The curtailed nature of this treatment is manifest not only in the synoptic way my points are made, but also in my bracketing of the issue of whether military deference is legitimate in the first place. I do no more than mention that the literature against military deference in its current form is robust. See, e.g., Kirstin S. Dodge, Countenancing Corruption: A Civic Republican Case Against Judicial Deference to the Military, 5 YALE J.L. & FEMINISM 1, 17-38, 44 (1992) (noting that "judicial deference to the military ignores the wisdom and cautions of the nation's founders and the civic-republican ideals that influenced them, and undermines the nation's ability to maintain and strengthen democratic self-government in our modern, heterogeneous social and political culture"); Kenneth L. Karst, The Pursuit of Manhood and the Desegregation of the Armed Forces, 38 UCLA L. REV. 499, 563-81 (1991) (critiquing the three rationales for judicial deference in military affairs: "deference in an emergency, deference based on the special needs of a 'separate community,' and deference based on the judiciary's relative incompetence to understand military matters"); Military Ban on Yarmulkes, 100 HARV. L. REV. 163, 170-71 (1986) (arguing, in the context of infringements on religious rights, against the status quo in which the military deference is a "mechanical sanction of military authority" and suggesting that deference should still require the military to adduce a robust rationale for its actions); John Nelson Ohlweiler,
275. Again, my treatment of the military deference objection is abridged because it does not directly affect the validity of my case study, but only the validity of one end to which my case study might be put. The curtailed nature of this treatment is manifest not only in the synoptic way my points are made, but also in my bracketing of the issue of whether military deference is legitimate in the first place. I do no more than mention that the literature against military deference in its current form is robust. See, e.g., Kirstin S. Dodge, Countenancing Corruption: A Civic Republican Case Against Judicial Deference to the Military, 5 YALE J.L. & FEMINISM 1, 17-38, 44 (1992) (noting that "judicial deference to the military ignores the wisdom and cautions of the nation's founders and the civic-republican ideals that influenced them, and undermines the nation's ability to maintain and strengthen democratic self-government in our modern, heterogeneous social and political culture"); Kenneth L. Karst, The Pursuit of Manhood and the Desegregation of the Armed Forces, 38 UCLA L. REV. 499, 563-81 (1991) (critiquing the three rationales for judicial deference in military affairs: "deference in an emergency, deference based on the special needs of a 'separate community,' and deference based on the judiciary's relative incompetence to understand military matters"); Military Ban on Yarmulkes, 100 HARV. L. REV. 163, 170-71 (1986) (arguing, in the context of infringements on religious rights, against the status quo in which the military deference is a "mechanical sanction of military authority" and suggesting that deference should still require the military to adduce a robust rationale for its actions); John Nelson Ohlweiler, The Principle of Deference: Facial Constitutional Challenges to Military Regulations, 10 J.L. & POL'Y 147, 175-81 (1993) (arguing that strict military deference need not apply when facial constitutional challenges are concerned, because these are less likely to threaten military effectiveness than individual personnel decisions).
276. See Korematsu, 323 U.S. 213 (according race-based classifications heightened scrutiny for the first time in a military context).
277. See Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion) (according sex-based classifications heightened scrutiny for the first time in a military context).
278. See supra note 5.
279. This is implicit in the very concept of a "heightened scrutiny classification," which anoints the classification, rather than the context, as being of judicial concern. Cf. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 451-55 (1985) (Stevens, J. concurring) (criticizing rigidity of existing heightened scrutiny analysis and arguing for more context-dependent analysis).
280. The prevailing tests of political powerlessness all look to the group's powerlessness in American society as a whole rather than allowing groups to make the case only on the basis of local powerlessness. See Cleburne, 473 U.S. at 445 (asking whether a group is unable "to attract the attention of lawmakers"); Frontiero, 411 U.S. at 686 n.17 (plurality opinion) (asking whether a group is underrepresented in the "Nation's decisionmaking councils"); United States v. Carolene Products, 304 U.S. 144, 153 n.4 (1938) (asking whether the group is a "discrete and insular minorit[y]").
281. See supra notes 155-158 and accompanying text.
282. These legal norms include acts of omission. For example, there is no federal legislation currently prohibiting discrimination against homosexuals, despite the fact that bills proposing such legislation have been introduced in Congress for more than 20 years. See Carlos A. Ball, Moral Foundations for a Discourse on Same-Sex Marriage: Looking Beyond Political Liberalism, 85 GEO. L.J. 1871, 1873 n.9 (1997) (noting that Congress considered proposals for federal legislation protecting gays as early as 1974 and that the most recent attempt to pass such legislation was defeated in 1996); see also CASES AND MATERIALS ON SEXUAL ORIENTATION AND THE LAW 466 (William B. Rubenstein ed., 1997) (noting the longevity of attempts to enact federal legislation protecting gays) [hereinafter SEXUAL ORIENTATION AND THE LAW]. Existing federal legislation either ignores or explicitly excludes the sexual orientation category. Thus, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1996), prohibits employment discrimination on the basis of "race, color, religion, sex, or national origin," id. at § 2000e-2(a), but omits any mention of sexual orientation. The Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (1996), specifically notes that homosexuality and bisexuality do not fall within its ambit, id. at § 12211(a). Perhaps more strikingly, legal norms against the equal treatment of gays, lesbians, and bisexuals also include acts of commission. In 1993, for example, Colorado passed an amendment to its constitution whose caption asserted that there would be "No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation." COLO. CONST, art. II § 30(b). While the U.S. Supreme Court struck down this amendment on equal protection grounds, see Romer v. Evans, 517 U.S. 620 (1996), analogous provisions in an amendment to a city charter have been upheld by the Sixth Circuit even in the wake of Romer. See Equality Foundation II, 128 F. 3d at 289 (upholding an amendment stating that the city of Cincinnati "may not enact, adopt, enforce, or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct, or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference, or other preferential treatment").
283. These legal norms include acts of omission. For example, there is no federal legislation currently prohibiting discrimination against homosexuals, despite the fact that bills proposing such legislation have been introduced in Congress for more than 20 years. See Carlos A. Ball, Moral Foundations for a Discourse on Same-Sex Marriage: Looking Beyond Political Liberalism, 85 GEO. L.J. 1871, 1873 n.9 (1997) (noting that Congress considered proposals for federal legislation protecting gays as early as 1974 and that the most recent attempt to pass such legislation was defeated in 1996); see also CASES AND MATERIALS ON SEXUAL ORIENTATION AND THE LAW 466 (William B. Rubenstein ed., 1997) (noting the longevity of attempts to enact federal legislation protecting gays) [hereinafter SEXUAL ORIENTATION AND THE LAW]. Existing federal legislation either ignores or explicitly excludes the sexual orientation category. Thus, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1996), prohibits employment discrimination on the basis of "race, color, religion, sex, or national origin," id. at § 2000e-2(a), but omits any mention of sexual orientation. The Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (1996), specifically notes that homosexuality and bisexuality do not fall within its ambit, id. at § 12211(a). Perhaps more strikingly, legal norms against the equal treatment of gays, lesbians, and bisexuals also include acts of commission. In 1993, for example, Colorado passed an amendment to its constitution whose caption asserted that there would be "No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation." COLO. CONST, art. II § 30(b). While the U.S. Supreme Court struck down this amendment on equal protection grounds, see Romer v. Evans, 517 U.S. 620 (1996), analogous provisions in an amendment to a city charter have been upheld by the Sixth Circuit even in the wake of Romer. See Equality Foundation II, 128 F. 3d at 289 (upholding an amendment stating that the city of Cincinnati "may not enact, adopt, enforce, or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct, or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference, or other preferential treatment").
284. Marriage between two individuals of the same sex has never been permitted and is not currently permitted in any jurisdiction in the United States. See Thomas B. Stoddard, Bleeding Heart: Reflections on Using Law to Make Social Change, 72 N.Y.U. L. REV. 967, 989 (1997).
285. Eighteen states still have sodomy statutes pertaining to sexual relations between human beings on their books. Seven states have sodomy laws that apply to homosexual relations only. See ARK. CODE ANN. § 5-14-122 (WESTLAW through 1997 Reg. Sess.); KAN. STAT. ANN. § 21-3505 (WESTLAW through 1997 Reg. Sess.); MD. CODE ANN. 1957, art. 27 §§ 553-54 (Michie, WESTLAW through 1997 Reg. Sess.); MICH. COMP. LAWS ANN. §§ 750.158, 750.338 (West, WESTLAW through P.A. 1998, No. 20); MO. ANN. STATS. § 566.090 (Vernon, WESTLAW through 1997 2d Ex. Sess.); OKLA. STAT. ANN. 21 § 886 (West, WESTLAW through 1997 1st Reg. Sess.); TEX. PENAL CODE, § 21.06 (West, WESTLAW through 1997 Reg. Sess.). Eleven states have sodomy laws that apply to both heterosexual and homosexual relations. See ALA. CODE § 13A-6-65(a)(3) (WESTLAW through 1997 Reg. Ses.); ARIZ. REV. STAT. ANN. §§ 13-411 to 13-412 (West, WESTLAW through 1997 1st Reg. Sess. and 2d Sp. Sess.); FLA. STAT. ANN. § 800.02 (West, WESTLAW through 1997 1st Reg. Sess.); IDAHO CODE § 18-6605 (Michie, WESTLAW through 1997 Reg. Sess.); LA. REV. STAT. 14:89 (West, WESTLAW through 1997 Reg. Sess. Acts); MINN. STAT. ANN. § 609.293 (West, WESTLAW through 1997 3d Sp. Sess.); MISS. CODE § 97-29-59 (WESTLAW through 1998 Reg. Sess.); N.C. GEN. STAT. § 14-177 (Michie, WESTLAW through 1997 Reg. Sess.); S.C. CODE ANN. § 16-15-120 (WESTLAW through 1997 Reg. Sess.); UTAH CODE ANN. § 76-5-403 (WESTLAW through 1998 Gen. Sess.); VA. CODE § 18-2-361 (Michie, WESTLAW through 1998 Reg. Sess.). It bears mention that "[e]ven in the majority of states that retain gender neutral language, the ancillary effects of the sodomy prohibition are directed against lesbian and gay citizens." Hunter, supra note 14, at 539. As William Rubenstein notes, sodomy laws not only directly affect lesbians, gay men, and bisexuals by threatening them with "arrest simply [for] expressing their love for one another," but also indirectly affect them by providing a "basis for constraining - or denying - [other] legal rights." SEXUAL ORIENTATION AND THE LAW, supra note 252, at 282. For example, a number of courts have relied on the presence of sodomy laws to argue that sexual orientation cannot be a heightened scrutiny classification. See, e.g., High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (noting that if homosexual conduct can be constitutionally criminalized, an identity constituted by that conduct cannot merit heightened scrutiny); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989) (same); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (same); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987) (same).
286. Courts have denied gays, lesbians, and bisexuals custody or visitation rights both by noting that homosexuality is per se incompatible with such rights and, more commonly, by noting that a parent's sexuality may be taken into account when it has some connection to his or her parenting abilities. See SEXUAL ORIENTATION AND THE LAW, supra note 252, at 810-11 (collecting cases).
287. It bears note that even if either of these objections were sustained, that would not be fatal to the argument that the visibility factor should be retired. The state's manipulation of invisibility to disempower invisible groups underscores the irony that it assumes that invisibility is always empowering. But even in the absence of state manipulation, invisibility still would not be a good proxy for political power, as demonstrated supra Part V.
288. See supra notes 155-158 and accompanying text.
289. See 10 U.S.C. § 654(b)(2).
290. See id.
291. See Able v. United States, 88 F.3d 1280, 1298 (2d Cir. 1996).
292. See infra notes 301-305 and accompanying text.
293. See infra notes 273-276 and accompanying text.
294. See supra notes 180-197 and accompanying text.
295. Karst, supra note 245, at 546.
296. See infra notes 306-309 and accompanying text.
297. The gay passer must therefore not only pass as a member of a straight community but as a member of a straight community marked by intolerance of gays. She may thus feel that to pass successfully she must engage in homophobic behavior. See Halley, Politics of the Closet, supra note 14, at 934 n.67 (recounting an interview with a homosexual Marine who stated that to evade detection, he would try to "'[b]e even more vociferous than everybody else'" when engaging in homophobic banter (quoting STUDS TERKEL, THE GOOD WAR: AN ORAL HISTORY OF WORLD WAR TWO 180 (1984))).
298. The gay passer must therefore not only pass as a member of a straight community but as a member of a straight community marked by intolerance of gays. She may thus feel that to pass successfully she must engage in homophobic behavior. See Halley, Politics of the Closet, supra note 14, at 934 n.67 (recounting an interview with a homosexual Marine who stated that to evade detection, he would try to "'[b]e even more vociferous than everybody else'" when engaging in homophobic banter (quoting STUDS TERKEL, THE GOOD WAR: AN ORAL HISTORY OF WORLD WAR TWO 180 (1984))).
299. See Michelle M. Benecke & Kirstin S. Dodge, Military Women in Nontraditional Fields: Casualties of the Armed Forces' War on Homosexuals, 13 HARV. WOMEN'S L.J. 215, 222 (1990).
300. See id. at 224 ("One of the most common tactics used by investigators [wa]s to pressure women to name others who might be gay in order to save themselves.").
301. See infra notes 291-294 and accompanying text.
302. See Kenneth Williams, Gays in the Military: The Legal Issues, 28 U.S.F. L. REV. 919, 926 (1994).
303. Samuel A. Marcosson, A Price Too High: Enforcing the Ban on Gays and Lesbians in the Military and the Inevitability of Intrusiveness, 64 UMKC L. REV. 59, 88 (1995) (quoting C. DIXON OSBURN & MICHELLE M. BENECKE, SERVICEMEMBERS LEGAL DEFENSE NETWORK, CONDUCT UNBECOMING CONTINUES: THE FIRST YEAR UNDER "DON'T ASK, DON'T TELL, DON'T PURSUE" 11 (1995)).
304. Samuel A. Marcosson, A Price Too High: Enforcing the Ban on Gays and Lesbians in the Military and the Inevitability of Intrusiveness, 64 UMKC L. REV. 59, 88 (1995) (quoting C. DIXON OSBURN & MICHELLE M. BENECKE, SERVICEMEMBERS LEGAL DEFENSE NETWORK, CONDUCT UNBECOMING CONTINUES: THE FIRST YEAR UNDER "DON'T ASK, DON'T TELL, DON'T PURSUE" 11 (1995)).
305. See Williams, supra note 270, at 926.
306. Dep't of Defense Directive 1304.26, encl. 1, § B(8)(a) (Dec. 21, 1993).
307. 10 U.S.C. § 654(a)(12) (1994).
308. Id. § 654(a)(9).
309. Id. § 654(a)(10).
310. See Tobias B. Wolff, Compelled Affirmations, Free Speech, and the U.S. Military's Don't Ask, Don't Tell Policy, 63 BROOK. L. REV 1141, 1145 (1998).
311. See id.
312. JOSEPH STEFFAN, HONOR BOUND: A GAY NAVAL MIDSHIPMAN FIGHTS TO SERVE HIS COUNTRY 145 (1992).
313. Id.; see also Holmes v. California Army Nat'l Guard, 124 F.3d 1126, 1131 (9th Cir. 1997) (noting that Holmes came out to his commanding officer in a memorandum stating: "'[A]s a matter of conscience, honesty and pride, I am compelled to inform you that I am gay.'").
314. Thomasson v. Perry, 80 F.3d 915, 953 (4th Cir.) (Hall, J., dissenting), cert. denied, 117 S. Ct. 358 (1996); see also Able v. United States, 880 F. Supp. 968, 979 (E.D.N.Y. 1995) ("[T]he court deems extraordinary . . . the almost total lack of concern evidenced in the Congressional hearings and the Committee reports as to the impact on unit cohesion of the attempt to enforce secrecy on homosexuals and to enlist them in the perpetration of a hoax on heterosexuals. Common sense suggests that a policy of secrecy, indeed what might be called a policy of deception or dishonesty, will call unit cohesion into question."), vacated, 88 F.3d 1280 (2d Cir. 1996).
315. 475 U.S. 503 (1986).
316. See, e.g., Richenberg v. Perry, 73 F.3d 172, 173 (8th Cir. 1995) (citing Goldman, 475 U.S. 503); Watson v. Perry, 918 F. Supp. 1403, 1417 (W.D. Wash. 1996) (same), aff'd sub nom. Holmes v. California Army Nat'l Guard, 124 F.3d 1126 (9th Cir. 1997); Thomasson v. Perry, 895 F. Supp. 820, 825 (E.D. Va. 1995) (same), aff'd, 80 F.3d 915 (4th Cir. 1996).
317. Goldman, 475 U.S. at 509-10.
318. See Air Force Regulation 35-10 para. 1-6.h(3)(f) (1980).
319. See BERSANI, supra note 111, at 16 ("I was not alone in being astonished by the prominence of shower rooms in the erotic imagination of heterosexual American males. Fear on the battlefield is apparently mild compared to the terror of being 'looked at' (and you know what that means for most males)."). As Kendall Thomas notes: From the media stories on heterosexuals in the armed forces who oppose President Clinton's proposal to lift the ban on the inclusion of 'avowed' homosexuals in their ranks, it would seem that straight male soldiers and sailors are haunted by the specter of the 'gay look.' The scopic scene that appears to trigger the most concern among straight military men is the spectacle of the communal shower. In interview after interview, the shower has served as the chief conductor of the straight troop's deepest anxieties. Kendall Thomas, Shower/Closet, 20 ASSEMBLAGE 80, 80 (1993) (citations omitted).
320. Able v. United States, 880 F. Supp. 968, 978 (E.D.N.Y. 1995), vacated, 88 F.3d 1280 (2d Cir. 1996). Indeed, one might put the point more strongly - closeted gays are actually more likely than open gays to be able to engage in homoerotic voyeurism.
321. DOUGLAS CRIMP & ADAM ROLSTON, AIDS DEMO GRAPHICS 102-03 (1990).
322. The term is J.L. Austin's. See J.L. AUSTIN, HOW TO DO THINGS WITH WORDS 98 (J.O. Urmson & Marina Sbisà eds., 2d ed. 1975).
323. See EVE KOSOFSKY SEDGWICK, Queer and Now, in TENDENCIES 1, 11 (1993).
324. See Enlisted Administrative Separations, Dep't of Defense Directive 1332.14, encl. 4, § G (Dec. 21, 1993) [hereinafter Enlisted Administrative Separations], quoted in Halley, supra note 233, at 180 (providing guidelines for factfinding inquiries into homosexual conduct).
325. See Halley, supra note 233, at 180.
326. See id. at 180-81.
327. See id. at 181.
328. Enlisted Administrative Separations, supra note 291, § E(4).
329. Id.
330. See Diane H. Mazur, The Unknown Soldier: A Critique of "Gays in the Military" Scholarship and Litigation, 29 U.C. DAVIS L. REV. 223, 247 (1996) (quoting Enlisted Administrative Separations, supra note 291, § E(4)).
331. Enlisted Administrative Separations, supra note 291, § E(4).
332. Mazur, supra note 297, at 247-48.
333. See id. at 248.
334. The strategy is not an immediate panacea, given that the military historically has shown a remarkable ability to sustain stereotypes even while acknowledging contradictory data. Thus, in the early 1990s, an admiral urged his officers to conduct a purge of lesbians, noting that local commanders had been reluctant to do so because lesbian sailors were generally "'hard-working, career-oriented, willing to put in long hours on the job and among the command's top performers.'" Karst, supra note 245, at 553 (quoting Jane Gross, Admiral Praises Lesbians but Urges Their Dismissal, N.Y. TIMES, Sept. 2, 1990, at 24). But such gaps between stereotype and reality can be expected to close eventually.
335. See, e.g., Cammermeyer v. Perry, 97 F.3d 1235, 1236 (9th Cir. 1995) (noting that Margarethe Cammermeyer, who was discharged under the military policy predating "don't ask, don't tell," was "a highly decorated nurse" who had received "numerous awards and distinctions, including the Bronze Star for distinguished service in Vietnam"); Steffan v. Aspin, 8 F.3d 57, 59 (D.C. Cir. 1993) (noting that Joseph Steffan, who was discharged under the old policy, "was, by all accounts, an exceptional midshipman" whose "exemplary performance . . . had earned him numerous honors and the respect and praise of his superior officers"), vacated, 41 F.3d 677 (D.C. Cir. 1994) (en banc); Watkins v. United States Army, 875 F.2d 699, 701 (9th Cir. 1989) (en banc) (noting that Perry Watkins, who was discharged under the old policy, was "in all respects an outstanding soldier").
336. See Able v. United States, 968 F. Supp. 850, 855 (E.D.N.Y. 1997) (noting that the government had abandoned its previous arguments that homosexuals were mentally ill, a greater security risk, or more likely to spread infectious diseases), rev'd on other grounds, 155 F.3d 628 (2d Cir. 1998); see also Cammermeyer v. Aspin, 850 F. Supp. 910, 924 (W.D. Wash. 1994) (noting that the government had retired its argument that homosexuals presented a security risk).
337. See Able, 968 F. Supp. at 858 (noting that the government's only remaining rationales are that the policy secures unit cohesion, promotes the privacy of heterosexual servicemembers, and reduces sexual tension).
338. It is true that the military has from time to time adduced anecdotal evidence to support its position. Thus, General Schwarzkopf has opined that "[t]he introduction of an open homosexual into a small unit immediately polarizes that unit." Policy Concerning Homosexuality in the Armed Forces: Hearings on S. 1298 Before the Senate Comm. on Armed Services, 103d Cong. 595-96 (1995) (statement of H. Norman Schwarzkopf, U.S. General); see also id. at 821 (1995) (statement of John P. Otjen, U.S. General) ("[B]ased on my experience, [a] statement [of homosexual orientation] alone will cause disruption within the unit."). Yet this evidence contradicts the findings of studies conducted by the General Accounting Office and the RAND Corporation. The RAND Corporation study noted that there were no serious problems concerning gays in the military in Canada, Israel, the Netherlands, and Norway, all of which permit gays to serve openly. See RAND, supra note 231, at 14, quoted in Able v. United States, 880 F. Supp. 968, 978 (E.D.N.Y. 1995), vacated, 88 F.3d 1280 (2d Cir. 1996). And both the RAND Report and the GAO Report concluded that domestic organizations analogous to the military have accepted homosexuals into their ranks without significant adverse impact. See RAND, supra note 231, at xxiv; GAO, Report to Congressional Requesters, Defense Force Management: DoD's Policy on Homosexuality (June 1992), quoted in Able, 880 F. Supp. at 978. Rather than resolving this factual dispute through rigorous testing (by, for example, permitting homosexuals in certain units to serve openly), the military has chosen simply to assume, rather than to prove, that its position is correct. In so doing, it has implied that in a matter so serious as the national defense, the military's factual assumptions should be given deference. See, e.g., Thomasson v. Perry, 80 F.3d 915, 926 (4th Cir. 1996) (noting that "it is simply impossible to estimate the damage that a particular change [affecting unit cohesion] could inflict upon national security - there is no way to determine and correct the mistake until it has produced the substantial and sometimes irreparable cost of [military] failure." (citations and internal quotation marks omitted)).
339. It is true that the military has from time to time adduced anecdotal evidence to support its position. Thus, General Schwarzkopf has opined that "[t]he introduction of an open homosexual into a small unit immediately polarizes that unit." Policy Concerning Homosexuality in the Armed Forces: Hearings on S. 1298 Before the Senate Comm. on Armed Services, 103d Cong. 595-96 (1995) (statement of H. Norman Schwarzkopf, U.S. General); see also id. at 821 (1995) (statement of John P. Otjen, U.S. General) ("[B]ased on my experience, [a] statement [of homosexual orientation] alone will cause disruption within the unit."). Yet this evidence contradicts the findings of studies conducted by the General Accounting Office and the RAND Corporation. The RAND Corporation study noted that there were no serious problems concerning gays in the military in Canada, Israel, the Netherlands, and Norway, all of which permit gays to serve openly. See RAND, supra note 231, at 14, quoted in Able v. United States, 880 F. Supp. 968, 978 (E.D.N.Y. 1995), vacated, 88 F.3d 1280 (2d Cir. 1996). And both the RAND Report and the GAO Report concluded that domestic organizations analogous to the military have accepted homosexuals into their ranks without significant adverse impact. See RAND, supra note 231, at xxiv; GAO, Report to Congressional Requesters, Defense Force Management: DoD's Policy on Homosexuality (June 1992), quoted in Able, 880 F. Supp. at 978. Rather than resolving this factual dispute through rigorous testing (by, for example, permitting homosexuals in certain units to serve openly), the military has chosen simply to assume, rather than to prove, that its position is correct. In so doing, it has implied that in a matter so serious as the national defense, the military's factual assumptions should be given deference. See, e.g., Thomasson v. Perry, 80 F.3d 915, 926 (4th Cir. 1996) (noting that "it is simply impossible to estimate the damage that a particular change [affecting unit cohesion] could inflict upon national security - there is no way to determine and correct the mistake until it has produced the substantial and sometimes irreparable cost of [military] failure." (citations and internal quotation marks omitted)).
340. 10 U.S.C. § 654(f)(3)(B) (1994).
341. See Halley, supra note 233, at 215.
342. See William N. Eskridge, Jr., Gaylegal Narratives, 46 STAN. L. REV. 607, 626-30 (1994) (describing seemingly homoerotic male-bonding rituals). But cf. Mazur, supra note 297, at 252 (contrasting the depiction of military life described in Eskridge, supra, with her own experience as a servicemember).
343. Halley, supra note 233, at 215.
344. See supra note 224 and accompanying text.
345. See supra notes 267-272.
346. See LARRY GROSS, CONTESTED CLOSETS: THE POLITICS AND ETHICS OF OUTING 21 (1993) (noting that many early "open" homosexuals were already marginal in society and thus were less concerned with the risks of shouldering the additional stigma of homosexuality).
347. See William N. Eskridge, Jr., Democracy, Kulturkampf, and the Apartheid of the Closet, 50 VAND. L. REV. 419, 440 (1997).
348. See supra notes 251-255 and accompanying text.
349. See SEDGWICK, supra note 103, at 202-03.
350. See, e.g., Holmes v. California Army Nat'l Guard, 124 F.3d 1126, 1132 (9th Cir. 1996) (relying ultimately on High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990)); Richenberg v. Perry, 97 F.3d 256, 260 (8th Cir. 1996) (relying ultimately on Padula v. Webster, 822 F.2d 97, 103-04 (D.C. Cir. 1987)).
351. See supra note 12 and accompanying text.
352. Schacter, supra note 214, at 283, 285.
353. See id. at 291-311.
354. Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (quoting Lyng v. Castillo, 477 U.S. 635, 638 (1986)).
355. 411 U.S. 677 (1973) (plurality opinion).
356. It may be argued that the visibility factor has an older pedigree. The famous fourth footnote of United States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938), directs judicial attention to "discrete and insular minorities." Professor Louis Lusky, who witnessed the formulation of the footnote, has advanced an interpretation of "discreteness" that equates it with "visibility." Lusky, supra note 41, at 1105 n.72. He thus disagrees with the Court's finding in Graham v. Richardson, 403 U.S. 365, 371-72 (1971), that aliens constitute a "discrete and insular" minority, because, inter alia, "many [aliens], who are anglophones, pass unnoticed." Lusky, supra note 41, at 1105 n.72. If Lusky's view is correct, the visibility factor dates back to 1938. I agree with Bruce Ackerman, however, that it is "not obvious whether most constitutional lawyers endow the word 'discrete' with independent significance in their understanding of Carolene doctrine." Ackerman, supra note 75, at 728-29. Indeed, Justice Stone, the constitutional lawyer who authored the footnote, appears not to have given Lusky's construction to the word "discrete." After Carolene Products, the next Supreme Court opinion to refer to "discreteness and insularity" was a dissent in Minersville School District v. Gobitis, 310 U.S. 586, 606 (1940) (Stone, J., dissenting). See also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 290 n.28 (1978) (tracing references to "discreteness and insularity" in Supreme Court opinions). In his Gobitis dissent, Justice Stone posited that Jehovah's Witnesses were a "discrete and insular minorit[y]," thereby manifesting an understanding of the phrase he had coined that is at odds with Lusky's interpretation. Gobitis, 310 U.S. at 606. This evidence shores up the reading of the word "discrete" that the Graham majority implicitly adopted. Nonetheless, it might be fairly contended that the word "discrete" may have been interpreted to mean "visible" by various courts that ignored, misunderstood, or rejected Justice Stone's subsequent use of the word in a dissenting opinion and relied instead on the text of Carolene Products. This possibility, however, merely supports my ultimate point that the visibility factor was derived in part from race, insofar as this interpretation of "discrete" would only be possible if the paradigm group against which it was interpreted was race-based, as opposed to the other "invisible" political and religious groups mentioned in the Carolene footnote.
357. See Frontiero, 411 U.S. at 684-85 (plurality opinion) ("There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. . . . [I]ndeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes.").
358. See id. at 685 ("Neither slaves nor women could hold office, serve on juries, or bring suit in their own names . . . .").
359. See id. at 686 ("[S]ex, like race . . . , is an immutable characteristic determined solely by the accident of birth . . . .").
360. See id. at 686 ("[I]n part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination . . . .").
361. But cf. Schacter, supra note 214, at 292 (describing a conservative lobbying group that argued against pro-gay legislation because blacks, but not gays, were denied the right to vote).
362. See Frontiero, 411 U.S. at 685 (plurality opinion).
363. See cases cited supra notes 15-18.
364. The narrowness of the frame of reference is somewhat surprising, given that alienage had been deemed a suspect classification only two years before in Frontiero. See Graham v. Richardson, 403 U.S. 365, 371 (1971). Had alienage been considered alongside race as an already-protected group, we could not have had the factors that were derived from Frontiero, for alienage is neither an immutable nor a visible characteristic. Thus, even if the Court had examined all the data it had before it at the time, the assimilationist bias would not have been introduced into the jurisprudence.
365. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 445-46 (1985).
366. I take the phrase from McClesky v. Kemp. 481 U.S. 279, 339 (1987) (Brennan, J., dissenting).
367. See Neil Gotanda, A Critique of "Our Constitution Is Color-Blind," 44 STAN. L. REV. 1, 40-52 (1991).
368. 515 U.S. 200 (1995).
369. Id. at 222 (1995) (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94 (1989) (plurality opinion)).
370. See id.
371. Id. at 245 (Stevens, J., dissenting).
372. See id. at 229.
373. See cases cited supra note 5.
374. United States v. Carolene Prods., 304 U.S. 144, 153 n.4 (1938).
375. Frontiero v. Richardson, 411 U.S. 677, 686 n.17 (1973) (plurality opinion).
376. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 445 (1985).
377. See Sunstein, supra note 12, at 2430 (listing "poverty, education, political power, employment, susceptibility to violence and crime, [and] distribution of labor within the family" as potential markers of social welfare).
378. Rubenfeld, supra note 86, at 761.
379. Romer v. Evans, 517 U.S. 620, 646 (1996) (Scalia, J., dissenting).
380. See supra notes 340-342 and accompanying text.
381. See, e.g., ROBERT DAHL, DEMOCRACY AND ITS CRITICS 114-15 (1989) (noting correlations between political power and access to money); ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 200-01 (1957) (noting that the voters with the highest incomes generally have the most political power).
382. See, e.g., ROBERT DAHL, DEMOCRACY AND ITS CRITICS 114-15 (1989) (noting correlations between political power and access to money); ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 200-01 (1957) (noting that the voters with the highest incomes generally have the most political power).
383. Lee Badgett notes that three recent surveys have found that the incomes of gay men and lesbians are either comparable to, or greater than, the national median incomes of men and women, respectively. See M.V. Lee Badgett, The Wage Effects of Sexual Orientation Discrimination, 48 INDUS. & LAB. REL. REV. 726, 729 (1995). Badgett goes on to observe, however, that these survey results are questionable for a number of reasons, including a sample skew toward individuals who were "out," white, urban, and well-educated - that is, toward individuals who possessed attributes that were correlates of wealth. Id. Badgett's own study, which she believes "constitutes a significant methodological advance over other quantitative studies," found that gay, lesbian, and bisexual workers earned less than their heterosexual counterparts, although she notes that the results from the comparison of lesbian to straight female workers were not statistically significant. Id. at 726. Even if gays do not have higher incomes than straights, however, they may still have consistently higher disposable incomes. I therefore assume for the sake of argument that Justice Scalia is correct in his assertion that gays have "high disposable income." Romer, 517 U.S. at 646 (Scalia, J., dissenting).
384. See Nancy Klingeman & Kenneth May, For Better or for Worse, in Sickness and in Health, Until Death Do Us Part: A Look at Same-Sex Marriage in Hawaii, 16 U. HAW. L. REV. 447, 487 (1994) ("Gay and lesbian couples also have a higher discretionary income . . . than their heterosexual counterparts, because they are less likely to have children.").
385. See supra note 255.
386. Another set of interrelated factors in the case of gays is health, income, and social discrimination. Gays might be expected to have better health care given their relatively higher disposable income. Given its best reading, however, "health" would also have to include social resources devoted to the cure of diseases. And to the extent that homophobia has resulted in government inaction on AIDS, which in turn disproportionately affects gays in this country, gay "health" cannot be understood without understanding sexual orientation discrimination.
387. See BERSANI, supra note 111, at 62 (citing Henry Louis Gates, Jr., Backlash?, NEW YORKER, May 17, 1993, at 49).
388. See Yoshino, supra note 221, at 1765-66.
389. This is perhaps the most direct response to the critique that judges will still express their prejudices under the refined test, because it questions the critique's premise that all judges have made up their minds before applying the test. If we see judges as open to persuasion, a thick description of the group is more likely to assist them in their good-faith deliberations.
390. See Benno C. Schmidt, Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 1: The Heyday of Jim Crow, 82 COLUM. L. REV. 444, 472-74 (1982). See generally C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW (1955) (describing conditions of segregation under Jim Crow).
391. See Benno C. Schmidt, Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 1: The Heyday of Jim Crow, 82 COLUM. L. REV. 444, 472-74 (1982). See generally C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW (1955) (describing conditions of segregation under Jim Crow).
392. See, e.g., Wendy Brown-Scott, Race Consciousness in Higher Education: Does "Sound Educational Policy" Support the Continued Existence of Historically Black Colleges?, 43 EMORY L.J. 1, 44-46 (1994) (describing integrationist and assimilationist assumptions motivating Brown and subsequent desegregation efforts); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401, 1428 (1993) (describing the integrationist philosophy as based on the assumption "that once African-Americans and whites were able to inhabit the same physical environment (the process), African-Americans and whites would begin to respect each other as individuals and view race as an irrelevant characteristic like eye color (the ideal)"); Gary Peller, Race Consciousness, 1990 DUKE L.J. 758, 795-802 (describing the conflicting ideologies of integrationism/assimilation and black nationalism); Sharon Elizabeth Rush, The Heart of Equal Protection: Education and Race, 23 N.Y.U. REV. L. & SOC. CHANGE 1, 25 (1997) (arguing that racially integrated schools are "necessary for people of all races to begin to value each other's differences and learn to relate to each other with equal respect").
393. See, e.g., Wendy Brown-Scott, Race Consciousness in Higher Education: Does "Sound Educational Policy" Support the Continued Existence of Historically Black Colleges?, 43 EMORY L.J. 1, 44-46 (1994) (describing integrationist and assimilationist assumptions motivating Brown and subsequent desegregation efforts); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401, 1428 (1993) (describing the integrationist philosophy as based on the assumption "that once African-Americans and whites were able to inhabit the same physical environment (the process), African-Americans and whites would begin to respect each other as individuals and view race as an irrelevant characteristic like eye color (the ideal)"); Gary Peller, Race Consciousness, 1990 DUKE L.J. 758, 795-802 (describing the conflicting ideologies of integrationism/assimilation and black nationalism); Sharon Elizabeth Rush, The Heart of Equal Protection: Education and Race, 23 N.Y.U. REV. L. & SOC. CHANGE 1, 25 (1997) (arguing that racially integrated schools are "necessary for people of all races to begin to value each other's differences and learn to relate to each other with equal respect").
394. See, e.g., Wendy Brown-Scott, Race Consciousness in Higher Education: Does "Sound Educational Policy" Support the Continued Existence of Historically Black Colleges?, 43 EMORY L.J. 1, 44-46 (1994) (describing integrationist and assimilationist assumptions motivating Brown and subsequent desegregation efforts); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401, 1428 (1993) (describing the integrationist philosophy as based on the assumption "that once African-Americans and whites were able to inhabit the same physical environment (the process), African-Americans and whites would begin to respect each other as individuals and view race as an irrelevant characteristic like eye color (the ideal)"); Gary Peller, Race Consciousness, 1990 DUKE L.J. 758, 795-802 (describing the conflicting ideologies of integrationism/assimilation and black nationalism); Sharon Elizabeth Rush, The Heart of Equal Protection: Education and Race, 23 N.Y.U. REV. L. & SOC. CHANGE 1, 25 (1997) (arguing that racially integrated schools are "necessary for people of all races to begin to value each other's differences and learn to relate to each other with equal respect").
395. See, e.g., Wendy Brown-Scott, Race Consciousness in Higher Education: Does "Sound Educational Policy" Support the Continued Existence of Historically Black Colleges?, 43 EMORY L.J. 1, 44-46 (1994) (describing integrationist and assimilationist assumptions motivating Brown and subsequent desegregation efforts); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401, 1428 (1993) (describing the integrationist philosophy as based on the assumption "that once African-Americans and whites were able to inhabit the same physical environment (the process), African-Americans and whites would begin to respect each other as individuals and view race as an irrelevant characteristic like eye color (the ideal)"); Gary Peller, Race Consciousness, 1990 DUKE L.J. 758, 795-802 (describing the conflicting ideologies of integrationism/assimilation and black nationalism); Sharon Elizabeth Rush, The Heart of Equal Protection: Education and Race, 23 N.Y.U. REV. L. & SOC. CHANGE 1, 25 (1997) (arguing that racially integrated schools are "necessary for people of all races to begin to value each other's differences and learn to relate to each other with equal respect").
396. See, e.g., Candace Saari Kovacic-Fleischer, United States v. Virginia's New Gender Equal Protection Analysis with Ramifications for Pregnancy, Parenting, and Title VII, 50 VAND. L. REV. 845, 852-54 (1997) (discussing the "equal treatment" model of gender equality as based on the assumption "that existing governmental and workplace policies can assimilate the excluded gender because there are no relevant differences between the genders").
397. See Balkin, supra note 14, at 2371.
398. See Christine A. Littleton, Reconstructing Sexual Equality, 75 CAL. L. REV. 1279, 1290 (1987) (discussing the ways in which "separate spheres ideology" kept women out of the public arena).
399. See, e.g., Nadine Taub & Wendy W. Williams, Will Equality Require More Than Assimilation, Accommodation or Separation from the Existing Social Structure?, 37 RUTGERS L. REV. 825 (1985) (describing the difficulties with a pure equality/assimilation theory of gender inequality and concluding that requiring assimilation with the male norm does not provide adequate protection for rights of women).