The debate over gay, lesbian, bisexual and transgendered (hereinafter GLBT) rights is controversial in society and in the courts. GLBT advocates are poised to change the way courts in the United States and communities view equal protection under the law. Traditional equal protection analysis defines the classification of people burdened by the law, and then applies the appropriate level of scrutiny based on the classification. Justice Anthony Kenney authored all of the Supreme Court opinions addressing the classification of sexual orientation. Critics of Justice Kenney assert that he is vague and his opinions provide little guidance for attorneys and judges. In this note I will argue that Justice Kennedy’s opinions provide clear guidance to advocates for equality and, I will propose a new test for equal protection analysis to be applied to classifications based on sexual orientation.

Traditionally advocates have focused on the four-part equal protection analysis to argue that heightened scrutiny should be applied to classifications based on sexual orientation. This analysis includes a discussion of whether there is a history of discrimination against GLBT citizens; whether GLBT citizens are politically powerless to change their position; whether the defining characteristic of GLBT people is an immutable characteristic and; whether that characteristic affects their ability to contribute to society. Huge portions of the briefs submitted to the Court discuss these areas however; no space is given to this discussion in any of Justice Kennedy’s Supreme Court decisions. I propose a new test focusing on the factors which form the basis of Justice Kennedy’s opinions. These factors include: defining the liberty at stake in the case; is there a history of laws restricting or regulating this liberty; does the law stem from animus toward the class and; is the law overbroad. Each of these factors is discussed at length in Romer, Lawrence and Windsor. By applying these factors, rather than the traditional factors for equal protection, an advocate will make an effective argument firmly rooted in the Court’s precedent.  

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