The principal task for a theory of legal equality is to design a test for non-discriminatory classifications. This chapter argues that no version of a ‘per se theory’ can be satisfactory. More attractive are relevance-based tests, though they yield a circularity which results from the temptation of implying a classification's purpose from the terms of the classification itself. This danger can be overcome by heightening the level of scrutiny applied to the purpose, and to the fit between the classification and the purpose. However, we need some good reasons for heightening the level of scrutiny of the legislation, and these reasons must be embedded in a general theory of what renders a classification discriminatory. An intuitively justified answer to this question seems to be that a classification is tainted as discriminatory by certain wrongful motives for legislation, in particular, if the legislation is based on prejudice, hostility and stereotyping.
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