Home > Journals > WMLR > Vol. 67 (2025-2026) > Iss. 3 (2026)
William & Mary Law Review
Abstract
The modern Supreme Court has defined “discriminatory intent” as a strict-liability concept. It does not matter why the government sorts people by a protected characteristic, such as race or sex; it matters only that the government does sort people by such a characteristic. This principle is the key holding of affirmative-action cases, such as Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Yet, in the recent case United States v. Skrmetti, the Court seemed to focus not on the question of whether the government sorted people by sex (it did), but on the question of why the government did so. In Skrmetti, the Court considered a statute that expressly sorted minors by sex to determine eligibility for gender-affirming care, and somehow concluded the statute did not discriminate on the basis of sex.
This Article uses the framework of doctrinal structuralism, which I developed in a prior work, to demonstrate that the Skrmetti Court appeared to be searching for a new exception to the general rule that, when the government sorts by sex, intermediate scrutiny applies. I refer to such an exception as an “incidental-intent” exception: If a decision maker sorts by a protected characteristic (sex, for example) for reasons that are incidental to the protected characteristic, that would not count as discrimination on the basis of the protected characteristic, or would not trigger heightened scrutiny.
The Court appears to be serious about such an exception, even though it was not fully articulated in Skrmetti. Accordingly, the Article applies doctrinal structuralism to explore the potential doctrinal paths the Court might pursue to implement such an exception, and evaluates the (massive) implications of some of those paths for equal protection and antidiscrimination law more generally. For example, one path would understand Skrmetti as adopting an animus requirement, which would take antidiscrimination law back to the Jim Crow Era. And another path would read Skrmetti as adopting a sole-cause requirement, which would exonerate the government any time it offers a nondiscriminatory reason for its actions, thereby undermining the very idea of heightened scrutiny for suspect classifications.
This Article concludes by proposing two less problematic paths to implement an incidental-intent exception: The best approach would be to adopt a primary- or predominant-factor causation requirement, similar to but distinct from the but-for causation requirement often used by the Court. Alternatively, though more problematic, the Court might adopt a disparate-impact requirement, along with the traditional disparate-treatment requirement, in classification cases. Either of these requirements would allow the Court to avoid finding discrimination in cases where the discrimination is incidental to some larger goal, while still holding the government accountable for most of the worst types of discrimination.