West Virginia v. B. P. J. · ¶207

In sum, an outstanding factual dispute should have prevented the Court’s resolution of B. P. J.’s claim. Far from being wholly irrelevant, that factual dispute is potentially outcome determinative. In concluding otherwise, the majority adopts the position that the Equal Protection Clause allows state actors to deploy sex classifications that impose significant burdens on subclasses within them, even when the State’s interests are not furthered by their inclusion and even when those interests would not be jeopardized by exempting them. Attempting to minimize this outcome, as well as the sharp break between the Court’s opinion today and its prior cases, the majority ends by contending that its “holding” is “straightforward.” Ante, at 26. Its holding may be straightforward, but that is not the point. The problem is how the majority gets there: by moving the goalposts set by precedent and…

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