There are three levels of analysis, with the highest being strict scrutiny, which is applied to racial discrimination, followed by heightened scutiny, which is what courts use for sex, sexual orientation and a few other categories, and the lowest being what is used in any review of laws being challenged, namely, standard review of the law.

When I said that the court needed to treat the matter like "sex or race", the point was that courts cannot use a standard level of scrutiny, which simply requires that a law have a rational relationship to a legitimate government interest.

Attempts by gay rights advocates to classify homosexuality as a class warranting strict scrutiny is a massive waste of time and almost certainly doomed to fail at the level of the Supreme Court. It is a very, very settled matter that it registers at the same level as sex, but not at the same level as race.

For the record, I completely support the level of scrutiny that the courts have generally recognized.