The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs. A growing body of and federal and state-court precedent addresses the flaws of the Court's suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and precedent that criticizes the Supreme Court's errors. This Article offers two alternatives approaches that could inform a new theory of equal protection for all subordinate classes.
Darren Lenard Hutchinson, "Not without Political Power": Gays and Lesbians, Equal Protection, 65 Ala. L. Rev. 975 (2014), available at http://scholarship.law.ufl.edu/facultypub/510