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Assimiliationist Bias in Equal Protection: The Visibility Presumption and the Case of Don't Ask, Don't Tell, 108 Yale Law journal 485 (1998)


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.

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equal protection, queer