Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell"

• DOI: 10.2307/797496
• Publication Date: 2006-05-07T00:25:17Z
• Authors: Kenji Yoshino
• Keywords: 05 social sciences; 16. Peace & justice; 0505 law

Under current equal protection doctrine, the courts are more likely to accord heightened scrutiny to a classification if its defining trait is immutable or visible. This means that groups that can assimilate into mainstream society by changing or altering their defining trait are less likely to benefit from judicial solicitude. By withholding protection from these groups, the judiciary is subtly encouraging them to assimilate when faced with burdensome legislation. This Article critiques that assimilationist bias by demonstrating that the immutability and visibility factors cannot be justified on either substantive or processual theories of judicial review. Because the immutability factor has already been heavily criticized, the Article focuses on the visibility factor. As part of its critique of that factor, the Article considers the U.S. military's "don't ask, don't tell policy." The Article maintains that the military is deploying the invisibility of gays to disempower them through means that would not be effective if used against a visible group. The Article then points out that the case of gays in the military belies the courts' assumption that invisibility is linked to political power. The negative prescription of the Article is that the immutability and visibility factors should both be retired. These factors, however, play a powerful gatekeeping role in equal protection jurisprudence, permitting the courts to justify their illiberality in granting heightened scrutiny. It is therefore unlikely that the courts will jettison these factors unless an alternative limited principle is discovered. The Article's affirmative prescription is that a refinement of the existing political powerlessness factor might supply that limiting principle.