Of Fruit Flies and Men : Rethinking Immutability in Equal Protection Analysis - with a View Toward a Constitutional Moral Imperative

Today, the debate over gay rights dominates our social, legal, and political discourse. This article takes a new and different look at equal protection claims by gays and lesbians, predominantly arguing for a general rethinking of proper equal protection analysis. Specifically, I argue that the relatively recent focus on trait immutability in equal protection jurisprudence is improperly restrictive of the Constitution's moral vision. As an alternative, I argue that a moral-centered equal protection analysis should take precedence. I reason that trait immutability is completely irrelevant to an essentialist equal protection norm, which ought properly to prohibit the marginalization of a citizen or group of citizens when that marginalization is based only on the merely descriptive moral disapproval of an identity trait - immutable or otherwise - by the larger society. Consequently, I shift equal protection analysis to focus on state action, omission, and complicity in the perpetuation and perpetration of irrational class-based prejudice. With regard to gays, of course, this is the irrational prejudice of homophobia