In this Article, I argue that sexual orientation meets the burden established by Supreme Court jurisprudence for suspect classification and, therefore, should receive heightened scrutiny under Fourteenth Amendment equal protection analysis. After decades of using the fundamental rights analysis to aid lesbian, gay, and bisexual individuals in their pursuit of equality, addressing the fundamental right to marry and the fundamental right to privacy, the Supreme Court must address the elephant in the courtroom: that sexual orientation meets all of the factors set by the Court in equal protection cases for suspect classification.
Gays, lesbians, and bisexual individuals (LGBs) meet the burden for suspectness in that they are a discrete and insular minority, with a long history of discrimination, and are effectively politically powerless. Furthermore, sexual orientation is an immutable characteristic, irrelevant to an individual’s ability to participate in and contribute to society. While the Supreme Court has not determined which factors are weighed more heavily than others in its award of suspect classification, sexual orientation meets all of the factors addressed by the Court in previous cases and therefore must be a suspect class and granted heightened scrutiny under the Fourteenth Amendment Equal Protection Clause.