Maxwell Stearns (Maryland) on the Equal Protection Clause and "Obergefell, Fisher, and the Inversions of Tiers"...
Professor Stearns explores the Supreme Court’s Equal Protection jurisprudence, the tiers of scrutiny specifically, and finds that there are five levels of scrutiny (rational basis, rational basis with teeth, intermediate, strict lite, and strict) when most commentators and the Supreme Court itself recognize only three (rational basis, intermediate, strict). From a critical perspective, the Court chooses the scrutiny based on whether it wants to uphold or repeal the legislation in question; strict or rational basis with teeth to invalidate, and rational basis or strict scrutiny lite when approving. From a formal perspective, Professor Stearns is frustrated by the Court’s lack of predictability regarding how categories are selected, particularly when a neutrally worded law as an obviously unstated purpose.
I suggest a more ‘realist-economic-critical race’ approach, where the level of scrutiny is in part determined by, one of Professor Stearns’ ‘justificatory triggers’ ought to be, the degree with which the legislation in question creates or exacerbates asymmetrical market imperfections relating to race, gender, etc. (rationality, competition, information, transaction costs).
Importantly, legislation can also be defended by the extent which it corrects market imperfections, including inequitable asymmetries relating to group subordination.
Should the Court agree with Professor Stearns that the original framework is too malleable and therefore unpredictable, the consideration of asymmetrical market imperfections can be incorporated into the Court’s existing framework, or it can be a part of a new construct—. I do not offer more specific way with which to determine the extent of the market imperfections, although I trust that any truly realistic and trustworthy econometric model (over which there will and should be relentless argument) provides a more objective, transportable and predictable process than what we now experience.
Except, the consideration of asymmetrical market imperfections cannot occupy the field, so to speak, because it does not deal all that well with claims based on violations of dignity. Processing the first case applying strict scrutiny to invalidate a law against racial miscegenation through the lens of asymmetrical market imperfections (if the law were neutrally worded, that is) would cut both ways, because the harm would be hard (though clearly not impossible) to describe as a deep affront to the structure of the market, but also because the uselessness of the law can be demonstrated by how little it positively affects market structures. DreSmith