The Case(s) for Applying Strict Scrutiny to Sex Discrimination: Revisiting Early Arguments for Strict Scrutiny & Reimagining a More Equitable Application of the Equal Protection Clause

The Equal Protection Clause of the 14th Amendment prescribes a concept of equality, rather than any particular conception of equality. This distinction enables us to move beyond a historically fixed understanding of equality, as limited to that at the time of the ratification of the 14th Amendment. This concept of equality requires that classes of persons are not subject to invidious and arbitrary discrimination on the sole basis of an immutable trait. Furthermore, where there there is a history or pattern of arbitrary discrimination in respect to a certain immutable characteristic, such as race, the Court ought to subject such classifications to the highest form of judicial scrutiny: strict scrutiny. This high level of judicial scrutiny acts as a safeguard against furthering a legislative and judicial history of invidious and arbitrary discrimination. The U.S. has a legislative history of arbitrary sex discrimination. Therefore, I will argue that the Court ought to subject sex-based classifications to the highest form of judicial scrutiny: strict scrutiny.