Supreme Court established a consistency principle in its race-based equal protection cases.
The new consistency principle, under which discrimination against whites is subject to strict scrutiny, conflicted with the Court's established criteria for declaring a group to be a suspect or quasi-suspect class entitled to heightened scrutiny, which focused on such considerations as the history of discrimination against the group and its political powerlessness.
I demonstrate that, in light of the consistency principle, an aggrieved heterosexual can bring a challenge to such a policy and seek heightened equal protection scrutiny even though the Court has yet to establish heightened scrutiny for laws discriminating against gays and lesbians.
This Article concludes that announcing heightened scrutiny in such a case--which under the consistency principle would benefit gays and lesbians in battles over marriage equality, parenting rights, and the like--would present a particularly appealing vehicle to the Court's center, represented by Justice Kennedy, whose jurisprudence to date simultaneously demonstrates support for gay rights and hostility toward affirmative action policies.
Hogan, (105) a post-Craig, pre-Croson decision, the Court reaffirmed the consistency principle (without so labeling it), emphasizing that the fact that a law "discriminates against males rather than against females does not exempt it from scrutiny or reduce the standard of review.
Thus, the Cleburne Court seemed to take as given a general underlying consistency principle that would require laws designed to benefit the mentally retarded to be subjected to the same heightened scrutiny that they were seeking in Cleburne to have applied to laws discriminating against them.
Still, it was possible even after Croson for the Court to limit the scope of its consistency principle in two distinct ways.
Thus, by 1995, the consistency principle was firmly rooted in equal protection jurisprudence, at least with respect to sex and race discrimination.
It also was a case that provided an early signal of the establishment of the consistency principle, with its assumption that applying heightened scrutiny to laws discriminating against the mentally retarded would result in the application of that same level of scrutiny to laws designed to benefit the mentally retarded.
149) By this point in time, the consistency principle was firmly established--Adarand had been decided the previous year-- and thus the factors identified by the Frontiero Court seemed no longer applicable.