The import of the jurisprudential consistency is a system through which it is theoretically easier to pass affirmative action policies for the LGBT community and women than for ethnic minorities under the Fourteenth Amendment. This oddity is particularly striking in light of the Fourteenth Amendment’s stated purpose to “ameliorat[e] . . . the condition of the freedmen,” the ethnic minorities the Fourteenth Amendment sought to protect.8 While this author takes the position that the LGBT community and women deserve full protection under the Equal Protection Clause—including as the beneficiaries of remedial legislation—it is wholly unsuitable that the current framework discriminates against the class of people the Amendment originally intended to protect. Thus, should most states (notably, excluding California) seek to implement legislation aimed at increasing educational or employment opportunities for the LGBT community, legislators should find repose in the current framework, which applies rational basis review. However, should California seek to implement an employment or educational affirmative action plan, under the current and historically fatal strict scrutiny standard, legislators would face a near-impossible battle.

Part II of this Article will canvass the societal ills, injustices, and discriminatory policies that remedial legislation is meant to combat. This country’s long-standing inequities against racial minorities, women, and gays and lesbians are well-documented and have frequently served as the basis for upholding a compelling or substantial governmental interest in remedying the injustices or striking down invidious legislation.10 As most challenges to remedial legislation are grounded in the Equal Protection Clause, Part II will also briefly canvass the Fourteenth Amendment’s history, giving specific credence to its role as a Reconstruction-era remunerative measure and Section Five’s affirmative grant of power. Part II will then scan both federal and state law as applied to remedial legislation for race, gender, and sexual orientation- based classifications, respectively. Circuit splits and state–federal splits will be addressed. Lastly, in Part II, Justice Thurgood Marshall’s “sliding-scale” alternative to the three-tiered level of scrutiny will be explored.

Next, Part III will offer substantial critiques of the levels of scrutiny applied in those cases, noting the vehement and passionate dissents by, among others, Justices Marshall and Stevens. Section III.B will highlight the current framework’s logical inconsistencies. To illustrate this inconsistency, the Article explores the anomaly that under federal law the current framework makes it easier for Congress to enact affirmative action policies for gays and lesbians and women than for ethnic minorities. The Article goes on to criticize the use of strict scrutiny in remedial contexts. As one scholar noted, “[T]his framework has evolved to a point where suspect classification analysis has become the Court’s ‘chief instrument’ for invalidating measures intended to remedy rather than perpetuate past race discrimination.” 11 Indeed, Justice Marshall found that “it is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible.”

The Article argues that applying near-fatal scrutiny to race-based remedial legislation while applying lesser scrutiny to gender and sexual orientation-based remedial legislation is incongruent to the proposition that the level of scrutiny is designed to comport with the level of protection the class deserves. Section III.C will dispel the notion that strict scrutiny is needed to “smoke out” illegitimate uses of race, gender, or sexual orientation-based measures, pointing out that strict scrutiny provides no search function, but rather rings a near-automatic death knell. Finally, the Article concludes that Justice Marshall’s sliding-scale scrutiny approach is the appropriate calculus by which to assess the constitutionality of remedial legislation. Justice Marshall emphasizes that the calculus should focus on the invidiousness of the legislation at issue, as opposed to the type of classification made.