Hi mafia,
Its always good to see another law wonk on the boards
. The federal law I was referring to is Title VII of the 1964 Civil Rights Act. It was amended in 1991 to include the ADA, but I'm pretty sure sexual orientation is still not there under Title VII.
I believe what you are referring to is the Equal Protection Clause of the 14th Amendment. Under the EPC, sexual orientation only triggers a rational basis test (which you know is the most lenient), AND a court will only review on an EPC basis if it finds 'state action.' I don't believe that fraternity recruitment practices would satisfy 'state action' in this case.
I'm hoping that Romer v. Evans and other cases like it will allow sexual orientation to become at least a quasi-suspect class, so it will trigger intermediate or strict scrutiny. I hope that is the direction the Supremes are going in permanently.
Either way, I think that we both agree that, practically speaking, a suit like this would be tough on everyone. Fair-minded people like us still have a long fight ahead.
(PS: If you ever need outlines, study guides, etc, please feel free to let me know. I still have all my class outlines, and my BarBri California Bar exam materials.
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