ABSTRACT
Recently, gays have increasingly sought constitutional protection from the pervasive discrimination. This chapter argues that courts should recognize homosexuality as a suspect classification under the equal protection clause of the fourteenth amendment and therefore subject laws that discriminate on the basis of sexual preference to heightened scrutiny, beyond the rational basis test currently applied. Commentators and litigators seeking constitutional protection for gay rights rely most frequently on the right of privacy. Advocates of gay equality have developed the first amendment rights to speech, expression, and association as an additional ground for the affirmation of gay rights, although this approach has been invoked less frequently than the privacy rationale. The significance of sexual orientation to group identity, both from within and outside the gay community, is even more evident, manifested by the existence of gay communities. Gay equality is not generally outweighed by any articulable state interest geared to the prevention of actual harm.
