What is the current state of the law on the rational basis of discrimination against homosexuals?

Homosexuals, then, are exactly the kind of class that should trigger strict scrutiny when the government discriminates against them. The panel's opinion, by ruling that such discrimination may be justified merely by a rational basis, creates the opportunity for immense abuse. While one may hope that future courts faced with discrimination against homosexuals would apply the rather "active" rational basis review exemplified by City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985), there is no guarantee that this will happen. There is ample authority defining "rational basis" in such permissive terms that it really means no scrutiny at all. E.g., McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961) ("A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it"). Thus the danger is great that an already much-vilified group will be subject to further governmental discrimination on the slightest of justifications. For this reason alone, this case should have been taken en banc, so that a more protective standard of review could have been established for our circuit.