This discussion from Michael Dorf is consistent with my previous post that in the last 20 years or so, the Court has ceased to bother with terms like fundamental rights, but focused on adjusting the levels of burden for the plaintiff, or government, depending on the nature of the right:
If you believe that the Congress that enacted DOMA was concerned about choice-of-law issues, then I have a bridge I’d like to sell you. Now Justice Scalia says this shouldn’t matter. Under traditional rational basis scrutiny, it doesn’t matter what the actual motive of the legislature was; so long as we can imagine a rational basis for the law, it’s constitutional. And he’s right about that.
Justice Scalia is therefore also right–IMHO–that there is much to regret about the fact that in Romer, Lawrence and now Windsor, the Court has failed to specify the level of scrutiny it is applying as a matter of equal protection doctrine (in Romer and Windsor) or substantive due process doctrine (in Lawrence). Putting aside the substantive due process issue, it would seem much more straightforward for the Court simply to say that laws drawing distinctions based on sexual orientation are subject to heightened scrutiny, either because sexual orientation distinctions simply are sex distinctions (and sex distinctions are already subject to heightened scrutiny) or because LGBT persons have been subject to a history of discrimination that continues to this day (albeit to a lesser extent than in the past).
If the Court were to rule that sexual orientation is a suspect or semi-suspect classification, then Justice Scalia’s point would evaporate, because under heightened scrutiny, actual legislative motive does matter. (See, e.g., Village of Arlington Heights v. MHDC).
Why is the Court unwilling to say whether sexual orientation discrimination triggers heightened scrutiny? So far as I can tell, at some point in the 1980s, the Justices simply decided that they were done recognizing “new” suspect classifications and fundamental rights. The result has been considerable confusion in the case law. As a con law teacher, I have a difficult time explaining to my students how to integrate cases like Romer,Lawrence and non-gay-rights cases that apply “covert” heightened scrutiny into their outlines.