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

Abstract

Equal protection heightened scrutiny jurisprudence currently privileges the talismanic classifications of race and, to a lesser extent, sex. In considering arguments that other classifications be accorded heightened scrutiny, the courts have required claimants to demonstrate the similarities these classifications share with race and sex. Commonalities between the two paradigm classifications thus play a powerful gatekeeping role. Two commonalities emphasized by the courts are that race and sex ostensibly mark individuals with immutable and visible traits. A classification will therefore be less likely to receive heightened scrutiny if its defining traits can be altered or concealed. By withholding protection from these classifications, the judiciary is subtly encouraging groups comprised by such classifications to assimilate by changing or hiding their defining characteristic. This is an assimilationist bias in equal protection, which I will critique in this Article.