context: Plaintiff argues that Hardwick is inapposite because it dealt with a substantive due process analysis whereas his claim is based on the equal protection clause. For purposes of qualified immunity, however, we need not decide how Hardwick affects equal protection claims; we need only note that courts have reached differing conclusions on the issue.
citation_a.signal: see
citation_a.identifier: 871 F.2d 1068, 1076
citation_a.parenthetical: "After Hardwick it cannot logically be asserted that discrimination against homosexuals is constitutionally infirm."
citation_a.sentence: See, e.g., Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir.1989) (“If homosexual conduct may constitutionally be criminalized, then homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny for equal protection purposes.”), cert. denied, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990); Woodward v. United States, 871 F.2d 1068, 1076 (Fed.Cir.1989) (“After Hardwick it cannot logically be asserted that discrimination against homosexuals is constitutionally infirm.”), cert. denied, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 473 (1990); Padula v. Webster, 822 F.2d 97, 103 (D.C.Cir.1987) (“There can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.”).
citation_b.signal: but see
citation_b.parenthetical: reviewing status-based discrimination against homosexuals under an active rational basis review, distinguishing Hard-wick as conduct based discrimination
citation_b.sentence: But see Pruitt v. Cheney, 963 F.2d 1160, 1166 n. 5 (9th Cir.1992) (reviewing status-based discrimination against homosexuals under an active rational basis review, distinguishing Hard-wick as conduct based discrimination); High Tech Gays v. Defense Indust.